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or misbranded products from interstate com the places, "where an employment covered Federal Reserve System. It is incidental to merce. Although the purpose of the statute by this chapter is being carried on." Con the power to regulate and control the curand of the Food and Drug Administration gress has a constitutional grant of power to rency. may be ever so benign, the constitutionality regulate such navigable waters.

(16) Inspection of coal mines (30 U. S. C., of the benignity does not automatically fol(6) Inspection of premises under Federal

sec. 4f-41; 451-454) low.

Employees Compensation Act (5 U. S. C., Inspection is justified, the report continues,

These inspections are limited to mines

sec. 784) because it it prevents fringe operators"

"the products of which regularly enter com

This act provides compensation for emachieving a saving in costs and thus making

merce or the operations of which substanit possible to engage in methods of competi- ployees of the United States. It incorporates tially affect commerce.” tion unfair to "responsible operators.” by reference section 941 (b) of the Long

(17) Inspections relating to intoxicating Again, this may be a worthwhile service by shoremen and Harbor Workers Compensation

liquors (26 U. S. C., sec. 3121 (c)) the Food and Drug Administration, but if

Act (supra) and limits the provisions to the
same extent. Federal inspection here is in-

This is a revenue statute, providing for the "responsible operators” do not desire it

cident to regulation of the working condi the inspection of only the records kept under they cannot be constitutionally compelled to tions of the Federal Government's own em

the act in connection with the production enjoy it.

ployees. These numerous purposes and reasons fol

of industrial alcohol and of the liquor and low at length upon the initial recognition by (7) Inspection of aircraft manufacturing property to which such records relate. All

manufacturers of this taxable merchandise the report itself that the Federal regulation

plants (10 U.S. C., sec. 310 (1))

must have a permit to operate and must of interstate commerce in food, drugs, thera This applied only to manufacturers who keep certain records which are subject to peutic devices, and cosmetics does not in

contracted with the Department of the inspection. clude the regulation of manufacture. The Army or Navy Department and who conreport states on page 1 that the act does not sented to inspection as an implied provision

(18) Inspections relating to New York Harbor "prohibit the manufacture of adulterated of their contracts. This was a contractual

(33 U. S. C., sec. 446) and misbranded food, drugs, devices, or cos- provision.

The supervisor of New York Harbor is emmetics, nor does it authorize the bringing

powered by this act to go aboard scows and of any court action for the seizure of any such (8) Inspections of plants using inventions adulterated and misbranded goods before

towboats engaged in unlawful dumping. He disposed of for the United States (35

may also inspect gas and oil works, “whenthey have entered the channels of interstate

U.S. C., sec. 96) (expired)

ever there is good reason to believe that commerce.”

This applied by reference 10 United States (injurious material) is allowed to run into This statement is sufficient in itself to blow Code 310 (1) to defense contractors who used, the tidal waters of the harbor." The inspecout the fog of the belabored gratuitous pur- sold, manufactured, or otherwise disposed tion is incidental to the Federal Governposes and needs, and the statement is also of an invention "for the United States.” The ment's exclusive admiralty power. sufficient in itself to demonstrate the inap- inspection was pursuant to contract and in

(19) Prevention of liquor violations in Inplicability and the irrelevancy of the inspec- cidental to the Federal power to grant pat

dian country (18 U. s. C., sec. 3113) tion authority contained in the 30 statutes ents. referred to on page 10 of the report and ex

This is a criminal procedural statute. An (9) Inspection of plants of defense contraccerpted in the report's appendix A. tors (50 App. U. S. C., sec. 643) (expired)

inspection is permitted when there is "prob

able cause to believe" there exists a violation STATUTES IN APPENDIX A ARE NOT COMPARABLE

This made the inspection provided in 10 of the statute prohibiting liquor traffic with In all of those statutes there are distin- United States Code, section 310 (1) appli- the Indian country. Congress has a specific guishing conditions as indicated by the fol cable to all defense contractors, and was an constitutional grant of power to regulate lowing outline: exercise of the defense power.

commerce with the Indian tribes. (1) Meat inspection (21 U.S.C., sec. 74) (10) Inspection of plants under Atomic

(20) Seizure of opium poppies illegally This act applies only to meat which is preEnergy Act of 1946 (42 U. S. C., sec, 1810

possessed (21 U. S. C., sec. 1889 (c)) pared for interstate or foreign commerce.


All who traffic in opium must be licensed The channels of interstate commerce are This applies to inspection of establish

by the Treasury Department. To enforce closed to meat which is found diseased or ments engaged in atomic research and manu

the provisions of the act, Treasury agents which comes from an unsanitary factory. facture regulated under the defense power.

may enter upon any land (but not a dwelling Only meat which has been stamped as in- By this act the title to all fissionable material

house without a search warrant) where spected may move in such commerce.

is vested in the Atomic Energy Commission, opium is produced or stored. The act im(2) Inspection of process or renovated butter (11) Inspection of premises for examination plements international treaties regulating

of taxable objects (26 U. S. C., sec. 3601) (26 U.S.C., sec. 2325)

distribution of narcotic drugs and safeThis is primarily a revenue statute under

This is a revenue statute, providing for

guards the revenue. which manufacturers must pay a tax and the entry by revenue agents of places where (21) Customs inspections in the

the Canal post a bond to insure compliance. The proc. in objects subject to tax are made or kept, Zone (title 2, Canal Zone Code, sec. 66) essed butter, to be shipped in interstate com"as it may be necessary for the purpose of

This provides for an inspection to be made merce, must bear an inspection stamp. Fail- examining said

articles." It is a

by custom officials in a United States jurisure to adhere to sanitary conditions results means of determining and collecting taxes

diction when there is reason to suspect a vioin the removal of inspectors and a consequent due to the Federal Government.

lation of the customs laws, and constitutes a closing of the channels of interstate com (12) Inspection of plants producing serums regulation of foreign commerce. merce. and related products (21 U. S. C., sec. 157)

(22) Inspection of stored cotton (7 U. S. C., (3) Regulation of biological products (42 To conduct an interstate business in such

sec. 473)
U.S. C., sec. 262 (c))
articles, one must obtain a license. The

This act provides for a compilation of inUnder this act, all manufacturers of such granting of such a license is conditioned on

formation which is to be obtained by means products must be licensed to do an interthe licensee's permitting inspection, and in

of questionnaires through the mail. It also state business and the license is issued upon spection is expressly limited to those estab

provides for an examination of samples of the condition that the licensee shall permit lishments which are licensed.

cotton on hand, which samples are to be supinspection. Inspection is limited to those (13) Inspections under priority and alloca plied to agents of the Secretary of Agriestablishments which prepare such goods tion powers of the President (50 App. culture on request. for interstate sale.

U.S. C. 1152 (a) (3) 633, subsecs. (3) (4))

(23) Inspection of freight forwarders (49 (4) Inspection of certain distilleries (26 The inspections of this act which are for

U. S. C., sec. 1012 (d))
U. S. C., sec. 2827)
"the enforcement or administration of the

This act applies only to freight forwardThis is a revenue statute requiring that all provisions of this subsection” are based on

ers doing an interstate business under an stills be registered with the Director. Reve

the defense power. The subsection applies nue agents may enter distilleries to examine to manufacturers who have entered into de

Interstate Commerce Commission permit. the stills and determine the quantity of

fense contracts with the United States Gov (24) Inspection of locomotive boilers (45 ernment.

U. S. C., sec. 29) mash, etc., on hand. The purpose of the "inspection” is to see that the correct tax (14) Inspection of plants manufacturing This act regulates safety appliances to be is paid.

boilerplate (46 U. s. C., sec. 408)

used by common carriers doing an inter

state business by rail, and provides for the (5) Inspection of premises under Longshore

This inspection applies to boilerplates men and Harbor Workers Compensation which are to be used in steam vessels operate inspection of locomotive boilers as a means Act (33 U. S. C., sec. 941 (6))

ing on the navigable waters of the United of carrying out the provisions of the act. This act provides compensation for disa

States, and is a regulation of commerce on (25) Inspection and sampling of cotton (7 bilities from injuries “occurring upon the such waters.

U. S. C., secs. 59, 473) navigable waters of the United States (in

(15) Inspection of banks (12 U. S. C., sec. Only cotton “involved in any transaction cluding any drydock).” The inspection for


or shipment in commerce" is inspected the purpose of carrying out the provisions This inspection applies to the examination under this act. It is expressly limited to of the act is a safety measure limited to of national banks and member banks of the goods in interstate commerce.


(26) Inspection of grain (7 U. S. C., sec. power—properly derived in the first place Neilson v. Garza (supra) has evidently 76) being unreasonably exercised.

never been overruled, modified, or distinThe inspection provided for in this act is It is with the States that the power to guished. It has been cited or quoted by made at the point of shipment and applies enact general inspection laws abides. The numerous State courts as well as in the folonly to grain shipped or delivered for ship- majority report makes frequent references lowing Federal cases: ment in interstate commerce and is for pur

to the fact that State and local laws have Patapsco Guana Co. v. Board of Agriculposes of grading the grain only.

long dealt with inspections, overlooking ap ture of North Carolina (supra). (27) Inspections relating to caustic poisons Federal Government depends upon powers

parently that under the Constitution the Red C. Oil Mfg. Co. v. Board of Agriculture (15 U. s. C., sec. 409)

(172 Fed. 695, 706) (C. C. E. D. N. C., 1909). granted and that all powers not granted re Jackson v. Cravens (235 Fed. 212, 217) This act provides for the inspection of

main with the States or the people. Thus (D. C. S. D. Fla., 1916). caustic poisons shipped in interstate com States and municipalities enact inspection Foster V. Master and Wardens (94 U. S. merce. Only the articles are inspected laws in a multitude of situations and they 246, 247, 1877). articles which are shipped in interstate com do it in the exercise of their police power. Turner v. Maryland (107 U. S. 38, 55, 1883). merce.

Although the phrase has been loosely used New Mexico, ex rel. McLean v. Denver & Rio (28) Inspection of plants offered for export at times, the Federal Government has no

Grande R. Co. (203 U. S. 38, 50, 1906). (7) U. S. C., sec. 146a (b))

police power. It has policing powers-powers Mr. Justice Brandeis, in 1919, said: The inspection under this act applies only

which have the quality of police regula "That the United States lacks the police to agricultural plants which are actually of

tions—but their validity, in matters of inter power, and that this was reserved to the fered for export. state commerce, depends upon their direct

States by the 10th amendment, is true.” and identifiable relation to interstate regu (Hamilton v. Kentucky Distilleries & Ware(29) Inspection of nursery stock and other lation.

house Company (251 U. S. 146)). plants (7 U. S. C., sec. 161) This has long been recognized by the

As though prophetic of the argument conThis provides for the inspection of nursery Congress and the courts, and the statutes

tained in the majority report, the Supreme plants moving from a state that has been cited in the majority report do not, as has

Court, in 1907, said: quarantined by the Secretary of Agriculture been shown, disclose anything to the con-.

“This amendment (10th), disclosed into or through another State. trary. The courts have stated that the right

the widespread fear that the National Govto make inspection laws is not granted to (30) Inspections of certain products under

ernment might, under the pressure of a supthe Federal Government but is reserved to Agricultural Adjustment Act (7 U. S. C.,

posed general welfare, attempt to exercise sec. 608C (6) (F)) the States. The Constitution provides (art.

powers which had not been granted. With 1, sec. 10, clause 2): This act applies to the handling of only

equal determination the framers intended

"No State shall, without the consent of such a commodity “as is in the current of

that no such assumption should ever find the Congress, lay any imposts or duties on interstate or foreign commerce, or which

justification in the organic act, and that if imports or exports, except what may be absodirectly burdens, obstructs, or affects inter- lutely necessary for executing its inspection lutely necessary for executing its inspectionsary they should be granted by the people

in the future further powers seemed necesstate or foreign commerce in such commod

laws.” ity." The inspection is confined to the com This section has been interpreted as a

in the manner they had provided for amendmodity.

ing that act.” (Kansas v. Colorado, 206 U. S. reservation to the States of the power to CONSTITUTIONAL QUESTION

46, 80.) inspect: Whether there is constitutional authority Neilson v. Garza (C. C. Tex. 1876, 2 Woods

Again, and likewise prophetic, the Supreme

Court, in 1936, in Carter v. Carter Coal Co. for Federal inspection as provided by section 287, 17 Fed. Case No. 10,091): "The right to 704 has not been established with respect to

(298 U. S. 238, 291), said: make inspection laws is not granted to Conthis or any other Federal statute. If such a gress, but is reserved to the States; but it

“The proposition, often advanced and as provision is later upheld in this statute it is subject to the paramount right of Cone

often discredited, that the power of the Fedwill be only if the scope of the inspection is gress to regulate commerce with foreign na

eral Government inherently extends to purlimited, if the authority is stated with clarity tions, and among the several States'.”

poses affecting the Nation as a whole with and is related definitely and directly to regu

This opinion was rendered by Mr. Justice

which the States severally cannot deal or lation of interstate traffic in food, drugs, Bradley of the United States Supreme Court

cannot adequately leal, and the related no-, while sitting on circuit. It was cited and

tion that Congress, entirely apart from those therapeutic devices, and cosmetics. Section 704 authorized inspection of a

quoted in Patapsco Guano Co. v. Board of powers delegated by the Constitution, may "factory, warehouse, establishment, or ve

enact laws to promote the general welfare, Agriculture of North Carolina (171 U. S. 345 hicle and all pertinent equipment, finished

have never been accepted but always defi. 355) (1898), the court also saying (354): and unfinished materials, containers, and "Inspection laws are not in themselves regu

nitely rejected by this Court.” labeling therein." This language seemed at lations of commerce.

And quite appropriate to what is provided the time of enactment, and indeed now

by the bill and advocated by the report, the

The proposition goes back to the leading seems, to define with clarity and with under

Court further said (p. 303): case on congressional power to regulate interstandable limits the scope of inspection instate commerce, Gibbons v. Ogden (22 U. S.

“One who produces or manufactures a tended. However, it appeared at the hear1) (1824). Chief Justice Marshall dealt with

commodity subsequently sold and shipped ings that the Food and Drug Administration

by him in interstate commerce, whether such inspection laws at page 203: has asserted the scope to be so expansive as

sale and shipment were originally intended

"But the inspection laws are said to be regto constitute what may fairly be described ulations of commerce, and are certainly

or not, has engaged in two distinct and seprecognized in the Constitution, as being

arate activities. as a "fishing expedition,” deserving of the

So far as he produces or condemnation expressed by Mr. Justice passed in the exercise of a power remaining

manufactures a commodity, his business is with the States. That inspection laws may

purely local. Holmes in Federal Trade Commission V.

So far as he sells and ships, American Tobacco Co. (264 U. S. 298, 305have a remote and considerable influence on

or contracts to sell and ship, the commodity 306):

to customers in another State, he engages commerce, will not be denied; but that a “The mere facts of carrying on a commerce power to regulate commerce is the source

in interstate commerce. In respect of the

former, he is subject only to regulation by not confined within State lines, and of being from which the right to pass them is derived, cannot be admitted. The object of inspec

the State, in respect of the latter, to regulaorganized as a corporation, do not make men's affairs public

tion only by the Federal Government. * *. Anyone who re tion laws is to improve the quality of articles spects the spirit as well as the letter of the produced by the labor of the country; to fit

Production is not commerce but a step in fourth amendment would be loath to believe them for exportation; or, it may be, for

preparation for commerce.” that Congress intended to authorize one of domestic use. They act upon the subject,

CRIMINAL ENFORCEMENT its subordinate agencies to sweep all our

before it becomes an article of foreign com The Federal Food, Drug, and Cosmetic Act traditions into the fire * * *, and to direct merce, or of commerce among the States, and is a criminal statute in the sense that viofishing expeditions into private papers on prepare it for that purpose. They form a lations of it may be prosecuted and punthe possibility that they may disclose evi- portion of that immense mass of legislation, ished as crimes. That is particularly true dence of crime * * *. It is contrary to the which embraces everything within the terri with respect to the proposed inspection. Unfirst principles of justice to allow a search tory of a State, not surrendered to the Gen der section 301 (f) of the act, refusal to through all the respondents' records, relevant eral Government; all which can be most ad permit entry or inspection as authorized by or irrelevant, in the hope that something vantageously exercised by the States them section 704 would be punishable as a misdewill turn up.”

selves. Inspection laws, quarantine laws, meanor, with imprisonment for not more The majority report seems to proceed upon health laws of every description, as well as than 1 year or a fine of not more than $1,000, the theory that the provision of the fourth laws for regulating the internal commerce or both, or as a felony, if the refusal is with amendment with respect to reasonableness of a State, and those which respect turn intent to defraud or mislead, punishable by of searches and seizures is authority for in- pike roads, ferries, etc., are component parts imprisonment for not more than 3 years or spection. In the opinion of the undersigned of this mass.

a fine of not more than $10,000, or both the fourth amendment is not a grant of No direct general power over these ob (sec. 303 (a) (b)). power but a check upon power which, if it Jects is granted to Congress; and, conse Furthermore, the object of inspection, exists, is otherwise granted. The fourth quently, they remain subject to State legis when reduced from the laudable purposes amendment is a guaranty against the the lation.'

asserted in the majority report to practical


actualities, is to discover possible violations (Gouled v. United States, supra). Then, a This applies only to those products of the statute and to obtain evidence for fortiori an act of Congress may not authorize which have entered interstate commerce, the enforcement of the law against violations Federal administrative officers to make

and there can be no inspection, there found. Violations of the statute with re searches to secure evidence to be used against spect to adulteration and misbranding are a person in criminal or penal proceedings.

can be no seizure, under this law unless subject to one and all of several procedures:

you have a condition of interstate com

SUGGESTED AMENDMENT injunction (sec. 302), seizure of the alleged

merce operating within either this law offending goods (sec. 304), and criminal

In the opinion of the undersigned, the bill

or the decisions of the United States Suprosecution for a misdemeanor or, in case of

proposes a grant of power to the Food and
Drug Administration which, for the reasons

preme Court or some other Federal a violation with intent to defraud or mislead, above stated, is unconstitutional. But, if

courts. The old law, I think, in short, a felony (sec. 303).

not, then for the same reasons the grant of was this: that you could enter and inAs the majority report states, the act does

power is unwarranted for the enforcement spect if you had permission. That was not prohibit the manufacture of adulterated

of the statute with respect to interstate the old law. In the Cardiff case, an apand misbranded articles; it does not author

traffic in food, drugs, therapeutic devices, ize the bringing of any action with respect

peal was carried to the Supreme Court and cosmetics. to adulterated and misbranded goods before

of the United States, and the Court held

Evidence at the hearings disclosed that they have entered the channels of interstate

there that since he did not give permisprior to 1938 when there was no provision at commerce. Thus, clearly, the purpose of in

all for factory inspection, the Food and Drug sion and they entered against his perspection is to obtain evidence which may

Administration obtained voluntary inspec- mission, that that was an unconstituor may not-be later used, depending upon

tion from at least 95 percent of the affected tional search and seizure, and for that whether the goods enter interstate com

industries, and that since 1938 under the reason they sustained Mr. Cardiff and in merce. So the bill provides for inspection of

authority contained in section 704, which effect nullified the old law so far as any factories, warehouses, "establishments,” ve

the majority report states was generally unhicles, and "pertinent” equipment, finished

practical effect was concerned. derstood to be compulsory, inspection was and unfinished materials, containers, and la

This law does give compulsory enobtained upon the consent of almost 100 per- trance to the inspector when he appears beling therein, and the owners, operators, or

cent of the affected industries. agents in charge must submit to inspection

In the 5 months between the decision in at the door of the factory and asks for on the peril of criminal prosecution. Dis

the Cardiff case and the hearings on the entry. That is the difference between putes between owners, operators, and agents bill there had been only 18 refusals.

the old law and the present law. In on the one hand and Government inspectors

On such evidence, it seems clear that ade- other words, now when he comes there on the other as to the inspection, or as to the

quate inspection can be continued on con and asks for permission to enter and scope thereof, would be resolved in criminal

sent and that if any amendment to the act proceedings to compel inspection. is required to obtain inspection of the fringe tory owner to allow him to come on the

inspect, it is compulsory upon the facSEARCH-WARRANT PROCEDURE IS NOT minority" to which the bill purports to be INAPPROPRIATE 'directed, it is merely an authorization for

premises and inspect. "The wording of the fourth amendment the Food and Drug Administration to seek, It may sound surprising to you as it implies that search warrants were in familiar

and for the courts to grant on cause shown, certainly was to me, knowing how inuse when the Constitution was adopted and,

a writ compelling inspection as ordered in dustry generally has resisted some of the plainly, that when issued 'upon probable the facts of the case. This bill—to get at

pure food and drug violations before, cause, supported by oath or affirmation, and the "fringe minority”-exposes the whole in

that they did come in rather unaniparticularly describing the place to

dustry to Federal inspection, criminally ensearched, and the persons or things to be

forced, at the will of the Food and Drug mously before our committee and recseized,' searches, and seizures made under

Administration and at the risk, as shown by ommend the passage of this bill. There them, are to be regarded as not unreasonable,

testimony at the hearings, of unwarranted were only, as I recall, two witnesses that and therefore not prohibited by the amend

expansion of power beyond congressional appeared in opposition, and they were ment. Searches and seizures are as constiintent.

not in total opposition to it, but with tutional under the amendment when made

Therefore, it is suggested that, on the

some modification. Mr. Cardiff testiunder valid search warrants as they are un

substantial evidence adduced at the hear fied that he did not believe anyone constitutional, because unreasonable, when ings, the public interest can be sufficiently

should be allowed to come into his facmade without them—the permission of the

served by an amendment which deletes secamendment has the same constitutional wartion 301 (f) and adds to section 704 a pro

tory and make a search unless they had rant as the prohibition has, and the defini

vision that, in the event of refusal to per a search warrant, or something in the tion of the former restrains the scope of the

mit entry or inspection, officers or employees nature of a search warrant. latter.” (Gouled v. United States (225 U. S.

duly designated by the Secretary are author I do believe that in this bill there are 298 (p. 308)).)

ized to apply for a search warrant or other certain safeguards as far as the factory The law of searches and seizures, under appropriate writ, and the district courts of

owner himself is concerned. In the first the fourth and fifth amendments, reflects a

the United States and the United States dual purpose of protecting privacy and pro

courts of the Territories shall have jurisdic- place, if the inspector comes on the tecting the individual against compulsory

tion for cause shown to issue such warrant premises and inspects and he takes a production of evidence to be used against

or other order to compel inspection accord- sample out, it is incumbent upon the him (Davis v. United States ((1946), 328 U. S. ing to the provisions of section 704.

inspector to supply to the factory own582)). These rights of privacy and security

Respectfully submitted.

er a receipt. If he makes an analysis are of the essence of constitutional liberty


on the premises or makes an analysis (Harris v. United States ((1947), 331 U. S.


after he takes the sample away from 145)).


the premises, he must provide a report "In practice the result is the same to one Mr. ELLSWORTH. Mr. Speaker, I to the factory owner. That was one accused of crime, whether he be obliged to yield 5 minutes to the gentleman from thing that the factory owners and the supply evidence against himself or whether

Illionois [Mr. SPRINGER). such evidence be obtained by an illegal

industries generally who testified were search of his premises and seizure of his pri

Mr. SPRINGER. Mr. Speaker, there insisting on. They did not know what vate papers. In either case he is the unwill

are some questions that have been asked the inspector did; that he came in, went ing source of the evidence, and the fifth here preliminarily during the past 15 over the premises, made an inspection, amendment forbids that he shall be com minutes or so that I can answer.

went over his books and looked at his pelled to be a witness against himself in a In the first place, let me say this law analysis and the records of his comcriminal case.” (Gouled v. United States

applies only to those products which will pany, and then went away and the com(supra (p. 306) ).) There is no distinction between "inspec

enter into interstate commerce. There pany owner did not have any knowledge tion" and "search" (District of Columbia v.

is no provision in this bill that takes care of actually what the man had done in Little (178 F. (2d) 13, 18 (C. C. A. D. C.,

of or provides for any adulterated foods the way of an inspection, or what he in1949)). Searches made without a proper

of any kind that may be processed or tended to do about his particular facwarrant are violative of the fourth amend manufactured prior to the time they tory. In the second place, when he ment (Judd v. United States ((1951), 190 F. enter interstate commerce. If in the makes that inspection, before he leaves (2d) 649)), for the mandate of the amend State of Illinois or Arkansas or Cali- the premises if he makes an inspection, ment requires adherence to judicial proc

fornia you have adulterated foods, it is he must give him some kind of a report esses (United States v. Jeffers ((1951), 342 U. S. 48).

not within the jurisdiction of the Fed in writing. I think those are 3 safeSearch warrants may not be used as a

eral Government to make inspections. guards for the factory owner. means of gaining access to a man's house or

If any foods are inspected that fall in There is a further protection herein, office, solely for the purpose of making a

that category, it must be made by virtue and that is any inspection that is made search to secure evidence to be used against of the public inspection laws of the re- must be a reasonable inspection and it him in a criminal or penal proceeding spective States.

must be made at reasonable hours,

which, I presume, is during business tion provision. The bill's proponents racketeering processors of these prodhours of the factory while it is in op- have sketched in its background. ucts. However, I do not believe that an eration. So, it seems to me that you Section 704 of the Food, Drug, and enforceable inspection law can be a comdo have some things in the bill which Cosmetic Act of 1938 now provides that pulsory inspection law. have been drawn purposely to safe- accredited Federal agents are authorized It is my belief that this bill as it is guard the industries themselves.

to enter the premises and specified al- proposed may well be unconstitutional. I believe that industry generally was lied facilities of the processors of food, In my opinion, the compulsory factory satisfied with the provisions of this bill, drug, and cosmetic products intended for inspection provision violates the protecand I doubt, if in the discussions which movement and sale in interstate chan- tive mandate of the fourth amendment the committee had in executive ses nels. The purpose of the entry is to to the Constitution, whose purpose is to sions there were any modifications of make inspection to determine whether shield against unreasonable searches the original bill recommended, and the processing and other conditions are and seizures. I, therefore, oppose this whatever was recommended, when they sanitary and that the products are un bill's passage on that ground, because, testified before the committee, was very adulterated and fit for consumption believing there is a substantial question minor in nature. within the meaning of the act.

as to its constitutionality, I feel it is my I do know that there are some people This provision establishes the author- duty under my oath of office to register who advocate, and I know there is a ity for the inspector to enter only after my protest to that end and to call my minority report which advocates, there “first making request and obtaining per colleagues' attention to my belief that shall be a search warrant procedure. mission of the owner, operator, or custo such question does exist in order that I think here is your difficulty of having dian” to so enter.

they may consider it. search warrant procedure. If the in

In only a limited number of cases has I must point out here parenthetically spector goes out to the factory and the exercise of this authority been re- that, in my mind, upon the experience something is wrong and entry is refused sisted by those processors whose. facil- had under the original factory inspecthen he must get a search warrant in a

ities were intended to be subject to the tion provision I do not fear that an atFederal court.

entry and inspection, and the fact that tack upon this proposed inspection proIn the meantime they may have the great majority indeed welcomed the vision, if adopted, would be initiated by cleaned up the very condition the man entry and inspection certainly is a trib- any of the great majority of honorable wants to inspect and to overcome. So I ute to the processors' integrity and sense processors who welcome inspections at think the search-warrant procedure is of responsibility.

all times. Neither would the minority of not a very good way in which to go about

The consent inspection provision was unethical processors who, being ready to the thing which the inspector wants to finally attacked and carried to the Su violate the law if they can get away with cure and which the Pure Food and Drug preme Court where, on December 8, 1952, it, initiate an attack upon it, though this Administration is seeking to clean up. in the Cardiff case it was decided that is the group against which protection

Let me say this, too, to my colleagues: the consent inspection provision was must be raised. My fear is that Mr. CarI think unless you have this kind of bill faulty. This decision did not determine diff, or other honorable men like him, you are going to be very unfair to the that the inspection provision's invalidity who object to Federal inspections as a people who are legitimately in the food resulted because of constitutional rea- matter of personal principle, will attack business. In other words, the people who sons; it determined that the invalidity this legislation, if it is adopted, and perwant to do a good job, who want to op- resulted from a language inconsistency severe as in the last instance and upset erate a clean factory under the right in the statute itself: one provision au it for constitutional reasons. kind of healthful conditions, are not go- thorized factory inspection after consent The Constitution does not delegate to ing to be able to do it because if you do to enter to inspect had been asked—sec the Federal Government a power of innot have a bill like this one you are go tion 700—and another provision-sec- spection of any nature or degree. In ing to have the racketeers who are in tion 301 (f)-made it a criminal offense the absence of such delegation the power business on a shoestring or who are not for the consent to enter and inspect to must then necessarily have been relegitimate and they will be able to avoid be refused.

served to the States under the provisions proper inspection.

This, briefly, is the history of the con of the tenth amendment. That the powI say again, as to all those who operate sent-inspection provision.

er is in the States is supported by the within State boundaries and supply their Since the opinion in the Cardiff case, provision of article I, section X, clause 2, goods within such boundaries, then all the tenor has been toward the substitut- where the State is prohibited from laying inspection must be done by the state. ing for the outlawed consent provision imposts or duties “except what may be In this bill I believe you have adequate a compulsory factory inspection provi- absolutely necessary for executing its safeguards with which to do the job. sion, and the Department of Health, Ed- inspection laws.” And the courts have

Mr. NICHOLSON. Mr. Speaker, will ucation, and Welfare's representations, so interpreted the situation, as the mithe gentleman yield?

as well as those of a considerable seg- nority report points out by citation on Mr. SPRINGER. I yield to the gen ment of interested industry, supports page 28. tleman from Massachusetts. . this trend.

Yet it is said that the inspection laws Mr. NICHOLSON. In connection with I regret that I arise today in opposi- are regulations of commerce so that the the matter of the search warrant, the tion to the proposed compulsory-inspec- Federal Government has the power to gentleman from Minnesota (Mr. O'HARA] tion legislation.

inspect in such cases as arise under the came before the committee and pointed My regret arises from the fact that I Food and Drug Act as a power auxiliary out several instances why they should abhor having to oppose the deep inter- to its power to regulate commerce among not do this without a search warrant, est of the majority of my colleagues on the several States within the provisions and said that if there was some trouble the Interstate and Foreign Commerce of article I, section VIII, clause 3. there it was not too much of a job to get Committee under the able guidance of There can be no better counterargua warrant in an orderly manner. He also our distinguished chairman, the gentle ment to that proposition than the statesaid that this also includes not only the

man from New Jersey [Mr. WOLVERTON), ment of Chief Justice Marshall in 1824 establishments but warehouses and au- for their legislative experience and in the leading case of Gibbon against tomobiles, if one of the inspectors should knowledge far exceeds mine.

Ogden, which is quoted on page 30 of the get the idea that you are carrying some I, too, believe that the Food and Drug minority report, of which quotation I thing illegally. That is one of the big Act must be corrected in order that the think the following is obviously the reasons the gentleman from Minnesota Federal Government may have an en

kernel: [Mr. O'HARA) was against the bill.

forceable inspection law which ade That inspection laws may have a remote Mr. ELLSWORTH. Mr. Speaker, I quately protects the consuming public and considerable influence on commerce, yield 5 minutes to the gentleman from in the area which involves food, drugs, will not be denied; but that a power to reguDelaware [Mr. WARBURTON). and cosmetics. In point of fact, the pro

late commerce is the source from which the Mr. WARBURTON. Mr. Chairman, I viding of such a law is not only necessary

right to pass them is derived, cannot be adrise in opposition to the pending bill. but is mandatory in order that it will improve the quality of articles produced by

mitted. The object of inspection laws is to As we know, this legislation's purpose protect each one of us against purposely the labor of the country; to fit them for exis to correct the Food, Drug, and Cos- dangerous violations of the Food and portation; or, it may be, for domestic use. metic Act's so-called factory inspec- Drug Act by the infinitesimal group of They act upon the subject before it becomes

an article of foreign commerce, or of com inspection statutes which are offered as Example number 4 concerns the aumerce among the States, and prepare it for precedents for the compulsory inspec- thority of the Federal Government to inthat purpose. They form a portion of that

tion authority proposed to be established spect certain distilleries and it appears immense mass of legislation, which embraces

in the Federal Government by the in- to be an extreme case because the aueverything within the territory of a State, not surrendered to the General Government;

stant legislation. Each quotation pur- thorized internal revenue officer, having all which can be most advantageously exer ports to give the language which vali- demanded admittance and not being adcised by the States themselves. Inspection dates compulsory inspection.

mitted into the distillery, is further aulaws, quarantine laws, health laws of every I have examined each of these stat- thorized to break open by force any of description, as well as laws for regulating the utes. Within each one of them further the doors or windows, or to break internal commerce of a State, and those

language appears which sets forth cir- through any of the walls necessary to which respect turnpike roads, ferries, etc., are

cumstances, conditions, or arguments be broken open or through at all times, component parts of this mass. No direct general power over these objects

which clearly and unequivocally estab- during the night or day, to enable him is granted to Congress; and, consequently,

lish that the citizen whose premises are to enter the premises. Yet the prethey remain subject to State legislation. intended to be inspected has expressly ceding section of the act which gives this

or impliedly consented that the inspec- authority requires that "every distiller That statement clearly indicates that

tion of his premises may be made." An shall furnish to the collector of the disinterstate commerce is divided into two phases and I have found no subsequent number 7 on page 15 of the majority

example of this appears in illustration trict as many keys of the gates and cases which change this principle.

report with reference to inspection of quired by the collector, from time to The first phase is the readying of the aircraft manufacturing plants.

time, for any revenue officer or other article preparatory to its being entered

In this quotation, the basic inspection person who may make survey or inspecinto interstate commerce; the second

provision is that “the manufacturing tion of the premises or of the contents phase is the actual entry of the article

plant, and books, of any contractor for thereof; and said distillery shall be kept into and its progress within interstate

furnishing or constructing aircraft shall always accessible to any officer or other commerce. The legislation before us proposes to

at all times be subject to inspection and person having any such key."
audit by any person designated by the

Certainly, there can be no greater subimpose inspection during the first phase, head of any executive department of the

head of any executive department of the stantiation indicating the giving of conthat is, prior to the entry of the article into interstate commerce, despite the

Government.” The next provision in- sent to the inspection than the giving of corporates within the basic inspection whom the authority to inspect is re

a key to the premises to the officer in fact that the Federal Government does

provision those provisions contained in not have the power to inspect during

posed. section 496 of United States Code, title this phase under the constitutional pro34. And title 34, United States Code,

Mr. HARRIS. Mr. Chairman, will the visions and the decision in the Gibbon

gentleman yield? section 496, specifically establishes the case.

Mr. WARBURTON. I yield. condition that If it is true that the Federal Govern

Mr. HARRIS. I should like to also ment has no power to inspect at all, can

No contract shall be made by the Secre comment on the fact that our colleague,

tary of the Navy unless the contractor this Congress then create in the Federal

the gentleman from Minnesota [Mr. agrees * * (d) that the manufacturing O'HARA) is not able to be here today durGovernment any authority to inspect spaces and books of its own plant, affiliates, even to attain worthwhile objectives and subdivisions shall at all times be sub

ing the consideration of this very imgreater than that which the citizen him ject to inspection and audit by any person portant legislation. So on this particular self is willing to consent to?

designated by the Secretary of the Navy. legislation, although he and I do not see But we also deal in this legislation with

it altogether alike, and are not in full

Here, the consent to the inspection is agreement on it, I do know his very great something more than a mere "power to an implied one because the agreement interest in this subject and I too, want to inspect.” We deal with a “compulsory that the inspection shall be made is in- join the gentlemen and the gentleman power to inspect”—a power to enter and

corporated in the contract by implica- from Minnesota in urging that the Meminspect which the citizen has no right to

tion of law. It necessarily follows that bership of the House read the report refuse, upon pain of criminal penalty. the contractor will not be awarded the which the gentleman from Minnesota I say that the Congress cannot create

contract unless the permitting of the inthis power.

[Mr. O'HARA) and the gentleman from spection results. I am regretfully forced to the conclu

Mississippi [Mr. WILLIAMS] have filed

Example No. 1 of the appendix con- with the report on this bill. sion that the Federal Government, under

cerns the inspection which the Sec Mr. WARBURTON. I thank the genany circumstances, has a power to in

retary of Agriculture shall cause to be tleman. May I also say one thing furspect only when the citizen whose prem made of all meat food products prepared ther, we must necessarily believe, we ises are the subject of the inspection

for interstate or foreign commerce, in- feel, that the Federal Government does consents-expressedly impliedlythat the inspection and the necessary

cluding the authority to have access at not have the inherent or expressed or

all times, by day or night, whether the implied power of inspection, as is conentry-can be made.

establishment be operated or not, to templated by this bill, and that the powThis rule appears even to me to be a every part of said establishment. Under er of inspection must be one that deharsh rule which imposes rigid restric

this act, the processor must have his volves from the consent, expressed or tions upon the Federal Government's

product stamped "inspected and passed" implied, of the owner of the premises to effort to protect the health and welfare

by the Federal authority before it can be inspected. of the general public.

be admitted into interstate commerce. Mr. ELLSWORTH. Mr. Speaker, I Its imposition will be decried as an Therefore, if the processor wants his move the previous question. effort to throw a cloak of protection product to go into interstate commerce The previous question was ordered. about those very persons whose interest

under the warrant of the stamp or mark The SPEAKER. The question is on lies in disregarding these rules whose he must necessarily permit the inspec- the resolution. purpose is to protect the whole citiz ry. tion in order that the stamp or mark can The resolution was agreed to, and a It will be said that my interpretation is be affixed to his product, and this neces- motion to reconsider was laid on the so legalistic as to defeat the common sity is the circumstance which creates table. sense application of the Food and Drug the consent to the inspection. Further Mr. HESELTON. Mr. Speaker, I ask Act's protective purpose.

more, the designated authority is au- unanimous consent to revise and extend I can only say that our whole system thorized to obstruct the movement of the remarks I expect to make in Commitof law is intended to protect the rights the product into interstate commerce by tee of the Whole and include a newsof each of us, regardless of the base- removing the inspector in the event the

removing the inspector in the event the paper and a magazine article. ness of our individual natures, and the processer refuses to permit the inspec The SPEAKER. Is there objection to law-through resort to the courts-also tion and the affixing of the stamp or the the request of the

the request of the gentleman from provides a method whereby the recalci mark. Incidentally, the processor is Massachusetts? trant can be controlled.

also required to pay for the inspection; There was no objection. I direct your attention to appendix A certainly, the willingness to pay substan Mr. WOLVERTON, Mr. Speaker, I appearing on page 14 of the majority re tiates his giving of consent to the in- move that the House resolve itself into port. This appendix quotes 30 Federal spection's being made.

the Committee of the Whole House on

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