A Brief History of the 1938 Food, Drug and Cosmetic Act: Part 2

Toward the end of 1933, Senator Royal Copeland realized that, if a new food and drug bill had any chance of passage, revisions would have to be made in response to the powerful opposition from trade groups. In February of 1934, Copeland introduced his second rewrite of S. 1944 (the notorious "Tugwell bill"), now called S. 2800, into the Senate.

This "sane, sensible, workable bill," as Copeland described it, provided 4 major concessions to industry, 3 of which directly affected drug manufacturers. First, full disclosure of ingredients would no longer be required on proprietary drug labels; instead, the manufacturer need list only specified components of his product. Second, publishers of false advertising would not be held legally liable; however, they would be required to identify those who produced the false copy to the Department of Agriculture. And in response to concerns that previous bills gave unrestricted regulatory power to the government, the revised bill also allowed for the creation of advisory boards to appeal alleged violations.

But as is the case with most compromises, no one was particularly happy with S. 2800. Trade groups, while appeased, to some extent, on the issue of advertising, predicted continued economic gloom with so much regulation of their business in the midst of the Great Depression. Tugwell himself, despite the fact that the revised bill still carried his name, was also unhappy with the concessions—to the point of publicly calling the bill "very disappointing" and losing interest altogether in its passage. This opinion was echoed by proponents of the original Tugwell bill, consumer lobbyists, who described the new measure as "emasculated" and a godsend to quacks.

The FDA's leadership, while harboring reservations about concessions in S. 2800, was still in favor of its passage. Chief Campbell was sufficiently pragmatic to understand that potentially unpleasant compromises would have to be made if food and drug reform were ever to become reality. The sentiment was generally shared by the AMA, which urged its members to support the bill's passage by contacting their congressmen. Influential women's groups also backed S. 2800, while continuing to lobby for the restoration of original components of the Tugwell bill.

Unfortunately Tugwell's sour opinion of S. 2800 would inform the President's apathy for its passage. And without FDR's leadership to champion the bill through Congress, S. 2800 died a death of indifference at the end of the 1934 Congressional session. FDR's coolness toward S. 2800 was likely political, given the ongoing friction between Senator Copeland and the Administration's New Dealers. And the President's ambivalence toward the bill probably had something to do with the FTC's struggle with the FDA over the control of advertising. In the President, the FTC found a sympathetic ear to its concerns for retaining its purview over advertising. In the coming years, contention between the 2 government groups over advertising control would become a major obstacle to legislative reform.

Chief source: Jackson CO. Food and Drug Legislation in the New Deal. Princeton, NJ: Princeton University Press; 1970.

Photograph of Royal S. Copeland from the Biographical Directory of the US Congress.