Document EddJLGORZ6e0JkeaLojM0o524

November 28, 1935 Mr. S. 3, Tates, P residen t, Ch icle Development Co, 500 Fift h venue, Sew York City. Dear Hr, Yates: Bet "X* Matter. . The prelim in ary h earin g with t e United St at e s Department o f Agriculture, on Movember 20th, warn very valu able, because i t developed two Important fa c t s o f fundamental sign ifican ce. / The f i r s t fact i s th at the government has found the detained ch icle to con tain isp to 22 par t s per m illion (or, as I understand, 1.50 gr ain s per pound) of **XW, which amount when calcu lat ed upon the b asis o f the proportion ate maximum amount (20 to 50$) o f ch icle i s gum, lar ge ly exceeds the o ffi c i a l toleran ce. Now t h is i s m an ifestly a seriou s fa e t . I t may be tru e, as Dr. ICehoe su ggest s, th at the govermsent1s method of an aly sis has exaggerated the amount of "XT iut&his ch icle. But the question remains whether t h is exaggeration e x ist s and, i f so, whether, 7*hen t h is exaggeration i s corrected, the r e su lt ing amount of *3T in gum tran scen ds the t oler an ce, on the other fend it may be tru e, as th e government, contends and Dr. Horwltt in fom sd rae, th at any er r or in the govermnt1s fin d in g of "XT in ch icle r e su lt in g from, tha uso of I t s presen t method of an aly sis favors the im porter. But between th ese two views the fae t remains th at th e governiaBnt i s sa t isfie d th at i t s method i s reason ably adequate for law enforcement her and th at i t s afor esaid maximum 22 p ar t s per m illion fin din g stan ds as i t s b asis for law enforcement, u n t il some modifying development occurs which is not yet in sigh t . Mow the fa c t of t h is maxi mum fin din g is ser iou s because i t means th at the government w ill even tually exclude the importation of ch icle containing "XT in an amount which, when calcu lat ed upon the b asis of th e foregoin g maximum oh iole content of gus, exceeds the toleran ce. 7or suoh exclusion w ill become a matter of public record. I st at e t h is meaning upon the b a sis th at i t i s not p r act icab le to recon dition suoh ch icle to take out a l l or the excess amount of *X". But, o f course, t h is l a st statement opens up another Mr* S* 3 * Yates -3- How* S3, 1935* remedial avenue h ere. I t i s the avenu of so reeon dition in g any exception al (I premime i t is exeep tion al ) ch icle, conta in- lag an excessive amount of "X", to get it imported without law enforcement exclu sion , in order t o avoid a publie record of such exclu sion and notwithstanding such ch icle may be u n fit for subsequent gum u se. But whether t h is remedy i s p r aet icab le i s a question I am unable now to answer* it involves th e furth er d ifficu lt y o f taking care of ch icle importations by oth ers which ar e excluded from im portation because of excessive " F con ten t. Assuming, however, th at fo r one reason or another the plan of securin g condemned ch icle entry i s not p r act icab le, upon a recon dition in g b a sis, eit h er a s to our th ree importers or gen er ally, then the only remaining remedy her i s to develop a con trol at the poin t of foreign production or shipment which w ill make cer t ain , by repr esen tative an aly ses, that no ch icle is offered for importation which fees con tain an excessive amount o f *7.*, we are unquesti onafcly requ ired, as a matter both o f company policy and food law enforcement, to develop a con trol over ch icle production which i s e ffe c t iv e to prevent "Xtt extern al contamination* jjad i f "X* is n atu r al ingred ien t and a public record o f ch icle import exclu sion for ex cessive n atural "X* i s to be prevented, then the add ition al an aly t ical con trol before importation shipment must be in st it u t e d . For t h is record of exclu sion w ill soon got around the country end the Consmaers* Besearch and oth er agen cies w ill thereby be position ed to r a ise the public issu e of MXM in chewing gum, as a damaging commentary# I t i s tru e, of course, th at the very fac t of t h is ch icle exclusion for ex cessive Br * I s e ffe ct iv e to safeguard gum composition as to "X*, presumptively speakin g* But the poin t X am making is th at once th ere i s any b asis for r a isin g t h is public cry by th ose who are in t er est ed to do so, the damage i s done in a p r act ical sen se. And the problem i& to remove the b a sis for that damage. The second fa c t i s th at the government w ill only collabor ate with our ch icle im porters, upon the b a sis of an adjourned hearing to complete our sc ie n t ific in vest igat ion and of a suspension of ad d it ion al ch icle deten tion s in the meanwhile, i f the gum manufacturers in st it u t e a due p r act ical "X* con trol plan which w ill be e ffe c t iv e to safegu ard pu blic h ealth , during t h is in terven in g per iod , from the stan dpoin t of the food law . N atu rally the government cannot tem porarily suspend th at law or tem porarily d e sist from i t s enforcement as to ch icle con tain in g "X" in an amount, which when propor t ion at ely reduced t o the figu r e represen ted by the maximum ch icle content o f gum, exceeds th e t oler an ce, u n less a com pen satin g e ffe ct iv e commercial con trol is immediately in st it u t e d . We did not know th at the detain ed ch icle does 00064*3 Mr. S. S. Tates --5-- Nov. 22, 1935. I t follow s, th erefore, th at X must be prepared to submit a plan o f such e ffe ct iv e commercial con trol, at th e Washington h earin g, and to st a t e th at t h is plan i s now in execution . Moreover i t i s e sse n t ia l from the stan dpoin t o f each gum manufacturer th at, as a matter o f polioy and n eces sary self- p r o t e ct io n , he put t h is plan in to e ffe c t . For he must make reason ably sure th at he markets no gum con tain in g *X" in an amount tran scen din g th e toleran ce. And while the planned gam an alyses by Dr* ICehoe ar e good m aterial for th e fin al h earing, they have but a lim ited value* For the fa c t is that in ch icle i s a var iab le con dition . I t may be in some ch icle and not in oth er ch icle; i t s amount in ch icle ranges from a minimum to a maximum; and th e maximum (when tr an slat ed as aforesoi d) may exceed th e toleran ce, with r e spect o f gua. So th at while the gum analyzed by Dr* Xehoe may contain no or 'X" within the toleran ce, oth er gum may con tain "X* exceeding the toleran ce; th e exten t to which it does nobody knows; and the government has the r e sp o n sib ilit y of preventing the in t e r st at e marketing of such gum. -.'hat T am endeavoring to say i s t h is* The government's fin din g o f t h is excessive amount of "X* la t h is ch icle has squarely presented the question th at th ere must be some e ffe ct iv e con trol to prevent the marketing of gum con tain in g "X* in violat ion o f the t oler an ce. And i f we ask the government to waive i t s con trol, tem porarily, we must su b st it u t e an equivalen t e ffe c t ive commercial con trol* And even i f we do not ask any tem porary waiver of government con trol and as a matter o f plain ly required company policy thi commercial con trol must be in st it u t e d in. any event and as a permanent th in g. In sh ort, we have the double problem of ge t t in g by t h is law enforcement d iffic u lt y upon some b a sis sat isfact o r y to both sid e s, and wi thout damaging p u b licit y , and also of in st it u t in g an e ffe e - tlve commercial con trol polioy for permanent duration * And in dealin g with t h is problem we must con sider how the oth er gum manufacturers w ill be brought under t h is con t r ol. For th e government must also have th e in mind* How i t is clear th at thi commercial ooatrol f i r s t in cludes (a) action to prevent extern al WXWcontamination in production and subsequent h an dling; and (b) action t o prevent the .shipment for importation of ch icle which con tain s n atu ral *XWin an amount which, when t r an slat ed , exceeds th e toleran ce. In ray le t t e r yesterday I asked you t o submit a p r act ical plan of the (a) con t r ol, In t h is le t t e r I have presen ted the questlon of the (b) con trol* . I t is also cle ar th at t h is commercial con trol n ext in cludes (o) action for the represen tative an aly sis of imported ch icle, to discover any th at con tain s an excessive amount o f "X* for due correction or d isp osit ion accordin gly; (d) action for the represen tative an aly sis o f the manufactured mixture com Mr* S. s . T at e s 4- Nov* 22, 1935* of for due correction or d isp osit ion accordin gly; and (f} action for the b iologic examination o f gum con tain ing the Known maximum amount of "X* n egatively t o e st ab lish i t s n on -in Juri ous ch aracter in a h ealth sen se* I f a due plan for the foregoin g con trol i s developed and in st it u t e d , then i t is a fa ir b asis for the requested government collabor ation * And, in my event, such con trol i s p r act ically required, to safeguard the gum bu sin ess in I t s health and fin an cial asp e ct s* I r e a lise th at t h is con trol plan presen ts a nee problem and many d i ffic u l t i e s* But ob viou sly i t must b Immediately effect u at ed , in sh eer ne lfprotoot ion and t o get out o f th is law d iffl eu lt y upon a b asis sat isfa c t o r y to both aid es. My policy i s to do everyth in g to avoid p u b licit y o f th is lav sit u at ion and to avoid any r e su lt in g law su it. Our gum manufacturers cannot affor d even to have a su ccess fu l law suit, because of i t s damaging p u b licit y . But i f I a# to brin g them sa fe ly through tfcie unavoidable law en forcement sit u at io n , then they must cooperate by developing t h is required commercial con trol plan and put me in the posi tion o f announcing i t a t the fin al h earing in Washington. Therefore pleas act and advise rae at once accord in gly. Sin cerely yours, C h a r le s W esley Dunn K 0006415