Monday, April 11, 2011

Wiley's Usurpation of Power Over Medicine and Diet


DR WILEY'S LATEST ATTEMPT AT USURPATION OF POWER THE Board of Food and Drug Inspection of the Department of Agriculture has recently issued what it calls a Tentative Food Inspection Decision which regulates or assumes to regulate the importation and sale of opium cocaine and coca their derivatives and preparations

And this tentative decision has been submitted to the drug trade for such suggestions and criticisms as they may see fit to make although we notice that the letter of transmittal states that the Board has weighed all evidence possible and believes this decision to be correct Starting out with the rather platitudinous pronunce ment that the indiscriminate and promiscuous use of opium morphine etc is recognized as a great menace to the public health the decision undertakes to regulate not only the importation but all subsequent sales whether by wholesaler or retailer even going so far as to lay down rules regarding the dispensing of the substances on physicians prescriptions It prescribes a form of declaration which the importer and each and every subsequent purchaser or receiver down to the ultimate consumer shall make setting forth that the drugs are intended to be used for the treatment of disease only which is construed not to include the use of any of these products for inducing sleep in infants or similar purposes It provides however that the making of this declaration is waived when purchases are made on the prescriptions of authorized medical dental or veterinary practitioners though it requires that all such prescriptions shall be dated and signed and shall contain the name of the persons for whom they are intended and shall be kept on file by the pharmacists for five years and must not be refilled except on the written order of the original prescribes It also provides that each and every package containing any of the specified drugs shall bear in conspicuous manner on the label or labels including any wrapper or cover the word poison in uncondensed Gothic type and the skull and cross bones all printed in red on a white background or white on a red background There are other regulations relating to the entering and warehousing etc of the products which not immediately concerning the retail druggist we do not think it necessary to recapitulate here

We have quoted sufficiently to show that the proposed regulation is of great importance to the retailer in that it imposes upon him the obligation to see that all the cough cholera or diarrhea remedies and all liniments ointments or other preparations including such simple household remedies as Dover's powders paregoric etc which contain the specified drugs in even the minutest quantities must bear the poison and the skull and cross bones label to say nothing of other annoying and troublesome requirements

The Board pretends to derive its authority for this extraordinary assertion of power from a portion of Section 11 of the Food and Drugs Act which reads as follows Sec 11 The Secretary of the Treasury shall deliver to the Secretary of Agriculture upon his request from time to time samples of foods and drugs which are being imported into the United States or offered for import giving notice thereof to the owner or consignee who may appear before the Secretary of Agriculture and have the right to introduce testimony and if it appear from the examination of such samples that any article of food or drug offered to be imported into the United States is adulterated or misbranded within the meaning of this act OR IS OTHERWISE DANGEROUS TO THE HEALTH OF THE PEOPLE OF THE UNITED STATES or is of a kind forbidden entry into or forbidden to be sold or restricted in sale in the country in which it is made or from which it is exported or is otherwise falsely labeled in any respect the said article shall be refused admission and the Secretary of the Treasury shall refuse delivery to the consignee and shall cause the destruction of any goods refused delivery which shall not be exported by the consignee within three months from the date of notice of such refusal under such regulations as the Secretary of the Treasury may prescribe

Now the power conferred by this section is exceedingly broad and arbitrary much broader and more arbitrary than in our opinion should be conferred on any man or set of men however great and good they may be or however worthy the object sought to be attained But even under its most strained interpretation we fail to find anything in it to authorize such power as is here asserted Indeed whatever may be the powers that the section confers are conferred not upon the Secretary of Agriculture and certainly not on the Board of Food and Drug Inspection but upon the Secretary of the Treasury and the authority given relates altogether to the matter of importation and not in the slightest degree to the sale and distribution of the drugs

And the function of the Secretary of Agriculture under the section is limited to the mere examination of such samples of imported goods as may be delivered to him on his request by the Secretary of the Treasury and to the determination of the question as to whether they comply with the Food and Drugs Act or are otherwise dangerous to the health of the people of the United States or are of a kind forbidden entry into or forbidden to be sold or restricted in sale in the country in which they are made or from which they are exported How in the world this clause can be made a warrant for a set of regulations requiring the filing of declarations by retailers and physicians in the States and by all other purchasers of their intentions in purchasing the goods in question the manner of packing and labeling the articles the preservation and inspection of prescriptions orders and transactions in these commodities and for other directions for the conduct of purely infra state transactions we are at a loss to understand The truth of the matter is that this tentative decision is not really a procedure under the Food and Drugs Act at all having in its nature and scope nothing whatever to bring it within the intent and range of that act but is a barefaced and impudent attempt to amend the United States Statute of February 9 1909 entitled An Act to Prohibit the Importation and Use of Opium for other than Medicinal Purposes

This act confines itself exclusively to opium its preparations and derivatives Congress had it seen fit might have included other drugs conducive to dangerous habit formation but it remains that it failed to do so and the Board of Food and Drug Inspection has brazenly taken it upon itself to correct what it evidently regards as a Congressional delinquency by amending and extending this statute to include other drugs which they think ought to be included going so far as to assume to dictate the terms upon which they shall be sold long after the original packages have been broken and they have lost their character as articles of interstate commerce It is easy to detect in this move the fine Italian hand of our old friend Dr Harvey W Wiley who has a peculiar penchant for usurping authority and attempting to give the force of law to his private opinions

It will be remembered that in testifying before the Congressional Investigating Committee Dr Wiley complained very vehemently of the action of Solicitor McCabe the legal officer of the Department in overruling some of Dr Wiley's decisions involving questions of law He chafed under such interference and said to the Congressional Committee Give me a law officer and a good stenographer right here in my bureau and I will get the work done get it done better and get done at one hundredth part of the expense now involved in working through the Solicitor of the Department He significantly added would welcome a law officer of sympathetic views with mine as to what the law is It seems that his wish for unchecked power has been more than granted for Solicitor McCabe having resigned the Board now has no law officer at all Dr Wiley being practically the whole thing and having now no one to check or restrain him his high handed action in the present matter is only what might have been expected from a man of his temper and disposition under the circumstances What will be the effect if this assumption of power be sustained

The answer is plain Dr Wiley can at will on the pretext that it is dangerous to the health of the people of the United States prevent the importation of any article of food or drug that he pleases and thus can destroy the business of any individual at his whim or caprice or when it becomes to hi interest to do so

What constitutes a danger to health Is very largely a matter of individual opinion It can not always be definitely and scientifically ascertained and determined One set of officials may think a certain product is deleterious and their successors in office may disagree with them entirely Put a prohibitionist in power and he could under this pretext exclude all alcoholic beverages Dr Wiley or Mr CW Post of Postum Cereal fame holding as they do that caffeine is dangerous to health could prevent the importation and sale of tea and coffee Someone else in the office with equal show of reason and authority might forbid the importation of tobacco cigars and cigarettes There are a few cranks who regard common table salt as injurious and so if one of them were in Dr Wiley's place he could prevent the importation of salt if the contingency should ever arise for its importation

If Dr Kellogg of Battle Creek were in the office he would if he followed his teachings exclude sugar and candy from the country for he has recently stated that the free use of cane sugar is a very injurious practice causing catarrh of the stomach and bowels acid dyspepsia diabetes and disease of the liver and kidneys Dr Woods Hutchinson on the other hand advises parents to permit their children to eat these substances ad libitum and so if he should follow Dr Kellogg in office he would reverse the latter's ruling and admit sugar as a wholesome product And finally if a disciple of Mrs Eddy were to occupy Dr Wiley's position he would exclude all drugs of every nature as injurious to health And so we repeat that the question of what is dangerous to health is one so largely of opinion and of such variability that it ought not to be left to the decision and determination of any official or set of officials who may happen to be in office at a particular time

This is a matter of most serious import to the druggists of the country or it would be if we could bring ourselves to believe that the tentative decision here commented on would ever become binding We are however disposed to look upon it as another erratic outbreak of Dr Wiley's irrepressible itch for notoriety and power and can not believe that so well poised and experienced a man as Secretary Wilson will ever permit it to be dignified into an actual ruling of his Department The requirements of the regulations in themselves may or may not be of a salutary nature That is not the question here Whether they are or not it is admitted that the States have full power to regulate the sale of narcotic drugs within their own bounds and practically all of them have done so But Dr Wiley and his Board of Food and Drug Inspection have no more authority to make such requirements than has the humblest citizen of the republic and the attempt thus to override statutory and constitutional law and to usurp the police powers of the States is as offensive an exhibition of arrogance and gall as we have ever seen or read of Indeed we can not enter into the minds of the man or men who would dare attempt a thing of the kind nor can we understand the temper of the American people that will put up with it for a moment The opium habit is certainly a great evil It affects however a comparatively small number of people But the usurpation of authority and lawless government such as Dr Wiley here and in the past has so often attempted are a menace to the liberty and property rights of every citizen who may come within the scope of his influence for they strike at the very root of our government and carried to their logical conclusion mean ultimate anarchy and ruin As we have said the Board of Food and Drug Inspection invite criticisms of and suggestions regarding the proposed regulations We therefore recommend that unless the druggists of the country desire to submit themselves to the espionage of the Washington officials and want to go to the trouble of putting the poison and skull and cross bones label on each and every package of the large number of medicines they sell which contain the specified drugs that they ought to let the Board of Food and Drug Inspection hear from them in no uncertain tones

If Dr Wiley should be upheld in his present attempt to dictate to the retailers with regard to the substances here under consideration he could with equal warrant extend his authority to and make rules regarding any or all other drugs which the pharmacist handles and we believe he would not hesitate to do so in any case in which he thought he would be subserving the interests of the gang of political doctors who have control of the American Medical Association at Chicago of one of whose most important committees he is an active and zealous member and worker

No comments: