The Secretary of State to the French Ambassador (Claudel)

Excellency: Adverting to Your Excellency’s notes of May 14 and June 16, 1928, transmitting lists of the complaints presented by the Government of France on behalf of French commerce,18 I have the honor to advise you that the above notes have been referred to the [Page 824] proper authorities of this Government for appropriate consideration in accordance with the agreement reached by the two Governments last fall. I am now advised by the Secretary of Agriculture that such of the complaints listed in the annexes thereto as come within the jurisdiction of his Department have received careful consideration and he has submitted the following observations thereon:

“The first protest contained in the accompanying communication of May 14, 1928, from the representative of the French Government, deals with pharmaceutical products. It is claimed that the different provisions of law relative to the composition of medicinal products, their labeling, packing and advertisement in the form of circulars, are applied in a way to create a real discrimination to the prejudice of foreign products. As to this, the Department would state that in so far as this Department is concerned the Food and Drugs Act, which applies to the importation of these products, has been administered impartially as regards foreign preparations and no discrimination has been made against French products. It is undoubtedly true that the relative percentage of preparations of French or foreign manufacture which have received attention is high; in fact it is much higher than the percentage of domestic preparations which have been the subject of action under the law; this is due, however, not to an application of different standards but because of the extremely large number of American preparations on the market and the fact that the conditions under which importations are made render the application of remedial measures under the law more readily available in respect to foreign products. Nearly all imported preparations come to the attention of the Department’s inspection force at the port of entry, while in the larger field of domestic commerce it is quite possible that many misbranded preparations may escape detection and prosecution for a time. This is due to no intentional laxity on the part of the law-enforcing authorities but to the limitations incident to operating in so broad a field which render it impracticable to reach immediately each and every violation of the law. Conditions in this respect, however, are constantly improving. In criticizing these French preparations for the purpose of law enforcement, the Department has used essentially the same basis or standards as it uses in applying law to American preparations, either as a basis for legal action or as a basis for inducing voluntary change in the labeling.

“In mentioning circulars no doubt the French authorities had particularly in mind action which we have taken against circulars or other literature brought in under separate cover. In many instances these seem to represent but an attempt at continuing labels or literature previously objected to. No doubt they have in mind the injunction proceedings against the Collector of Customs and the Secretary of Agriculture instituted by E. Fougera and Company in the case of a product known as ‘Dioseine Prunier’, where very objectionable circulars were brought in under separate cover which perpetuated objectionable labeling which we had previously called to their attention and to the attention of the manufacturer. Action was taken against the literature and against the product itself, although brought [Page 825] in separately. The literature, although supposedly addressed to physicians, was distinctly objectionable. This case has never been settled; in fact it is still pending, and it is understood that when the case is reached on the calendar another hearing will be afforded before a decision is reached. In the meantime the Department has not taken action against literature brought in under separate cover, except possibly in one or two extreme instances. It has, however, warned importers regarding the objectionable nature of this literature imported under separate invoice.

“Specific protest is made that certain hemopoietic horse serums have been prohibited although they are administered through the mouth and although they could be considered as defibrinated plasma and have been incorrectly classed with the antitoxic and anti-infectious serums which are the subject matter of the American law. As to this it may be stated that the preparations mentioned fall under the authority of the United States Health Service under the Act of July 1, 1902.19 No importer has made application to have such serums admitted for use in the treatment of domestic animals, and serum from horses has never been denied entry by this Department. However, a certain product known as ‘Hemostyl Serum Hemopoietique’ has in several instances been the subject of action by this Department because the labeling thereon was so broad and extreme in its therapeutic claims as to cover many serious diseases or conditions in which it would be ineffective and under these conditions the product was refused entry as grossly misbranded under the Sherley Amendment to the Food and Drugs Act.20 The Department in one instance called the attention of the United States Public Health Service to an importation of this product and that Service refused entry to it under the above mentioned Act of July 1, 1902. The therapeutic efficacy of this product was informally discussed between the representatives of this Department and the French commercial attaché. The latter was then informed that the statements regarding the therapeutic efficacy of the product were far beyond what was justified in fact.

“The protest of the French Government also covers the regulations concerning the importation of vegetable products and in particular of flower bulbs under the Plant Quarantine Act21 administered by this Department. It is claimed that by virtue of the Quarantine Act and of the Regulations thereunder the importation of nursery products and other plants and seeds is subject to restrictions ranging all the way from the securing of preliminary permits and the allotment of the importation to the prohibition of direct sale to consumers (narcissus bulbs since the first of January, 1928). The French Government suggests its willingness to work for an agreement between the French and American phytopathological services with a view to establishing sanitary certificates permitting the suppression of all restrictions to the importation of these products into the United States.

“In reply to this suggestion the Department is constrained to withhold its approval from any commitment of this Government to the [Page 826] modification of its present policy in the premises along the lines proposed. The inadequacy of the inspection and certification method of safeguarding the entry of foreign plants was plainly indicated in the seven-year trial subsequent to the passage of the Plant Quarantine Act. Not only was the foreign inspection of large, miscellaneous shipments totally inadequate, but it developed also that the reinspection at destination in this country could by no means be depended upon to complete the safeguards against entry of pests. It is to be regretted that inspection and certification of large shipments in foreign countries can not be effectively performed; and we are therefore forced to the conclusion that if the United States is to be protected from the stream of foreign pests which has hitherto been coming in, with resulting losses to our agriculture, running into hundreds of millions of dollars annually, the present policy must be continued—a policy which, in fact, originated in European countries and was based on pest conditions which undoubtedly fully justified it. This policy has been adopted by practically all nations having important commercial interests.

“Reference is also made in the above mentioned communication to the tariff duty on medicinal preparations containing even a slight proportion of coal tar. The analytical work under the Tariff Act22 is not done by this Department but by the Customs Laboratory.

“The French Government also suggests an understanding on the subject of rules for the disinfection of hides. The Department believes that there can be no occasion for any misunderstanding or difficulty in this regard. There is no prohibition against the importation of French hides and skins. They may come forward from France as generally provided for all countries subject to disinfection after arrival in the United States. They may also be imported without restrictions if shown by the certificate of an American consular officer to have been taken from animals in a section of the French Republic in which to the best of his knowledge and belief anthrax is not prevalent and neither foot-and-mouth disease nor rinderpest exists, or if they consist of hard dried hides and skins the reference to foot-and-mouth disease and rinderpest may be eliminated from the certificates. Any hides and skins consigned from a point at which there is suitable equipment for their disinfection by immersion may be imported without other restriction if accompanied by the certificate of a United States consular officer showing that they were disinfected under the supervision of a member of the consular staff by any one of various methods approved by the Chief of the Bureau of Animal Industry of this Department.”

It is hoped that Your Excellency’s Government will find in the foregoing statement a satisfactory explanation of the points discussed.

Accept [etc.]

Frank B. Kellogg
  1. Note of June 16, 1928, and lists of complaints not printed.
  2. 32 Stat. 712.
  3. Approved Aug. 23, 1919; 37 Stat. 416.
  4. Approved Aug. 20, 1912; 37 Stat. 315.
  5. Approved Sept. 21, 1922; 42 Stat. 858.