A Brief History of the 1938 Food, Drug and Cosmetic Act: Part 4

In the summer of 1935, the House conducted hearings on Copeland's latest food and drug bill, S. 5. Chairing the hearings was Representative Virgil Chapman (D-KY), a lawyer and newcomer to food and drug reform. Chapman, however, was quick on the uptake. He rapidly grasped the thorny issues that impeded the passage of effective reform—particularly the conflict between the FTC and the FDA for advertising control. S. 5's best chance for passage, he concluded at the end of the hearings, lay in a quiet education campaign, until sufficient House support was confirmed.

In the meantime, Chapman held the bill in committee, where efforts were made to strengthen the drug variation and seizure clauses. But the chief question remained: Who would control drug advertising, the FTC or the FDA? The President offered little in the way of decisive input, and after 9 months, Campbell's agency ultimately lost its fight for purview over advertising.

On May 22, 1936, the House version of S. 5 was finally reported out of committee, with a minority dissent (led by Virgil Chapman) on the advertising section. In mid-June, this version of the bill was passed in the House, after which time Senate and House conferees met to hammer out a compromise on the amendments—and specifically, on the issue of advertising oversight. After considerable wrangling, the final bill stipulated that all health-related advertising would be regulated by the FDA; the FTC would oversee the marketing of food and cosmetics.

Although the Senate accepted the compromise, fierce opposition to the advertising agreement was led in the House by lawyers B. Carroll Reece (R-TN) and Samuel D. McReynolds (D-TN). Both men represented districts in East Tennessee, the home of influential FTC member Ewin L. Davis. Reece's district was also the headquarters of the S. E. Massengill Company, in Bristol.* Their arguments, which drew on FTC loyalty and fears of Tugwell, were persuasive; in the summer of 1936, the House killed S. 5 in an overwhelming vote.

* In November 1937, Massengill would deny any attempted influence on Reece regarding passage of a food and drug law: "I have never, directly or indirectly, opposed any proposed Food and Drug law. I never spoke to Hon. Carroll Reece, my congressman, about the one now pending, nor, to my knowledge, did any of my friends do so."

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

Photograph of Virgil Chapman from the Biographical Directory of the US Congress.