July 19, 1946

LIB

Robert Wellington Mayhew (Parliamentary Assistant to the Minister of Finance)

Liberal

Mr. R. W. MAYHEW (Parliamentary Assistant to the Minister of Finance):

If the hon. member will furnish- us with a list of the bakers who are without flour, we will do

Food and Drugs Act

our best to see that they are supplied, provided that they have not already used up their quota of flour. The quota is ten per cent less than they had last year. So far the average figures for Canada as a whole show that the bakers have gone over their normal quota. If the hon. gentleman will let us have a list of the bakers who are making this complaint we will see what can be done.

Topic:   SHORTAGE IN VICTORIA CONSTITUENCY-EFFECT ON TOURIST TRADE
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PC

Clayton Wesley Hodgson

Progressive Conservative

Mr. HODGSON:

Is the parliamentary

assistant going to look after the tourist industry in this country? I have many telegrams that I shall be glad to show him this afternoon.

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FOOD AND DRUGS ACT

LIMITATIONS UPON IMPORTATION AND SALE TO GENERAL PUBLIC


Hon. BROOKE CLAXTON (Minister of National Health and Welfare) moved the second reading of bill No. 252, to amend the Food and Drugs Act. ' Mr. G. RUSSELL BOUCHER (Carleton): Mr. Speaker, I do not like to delay the house at this late stage to talk about something that is diseased or putrid or rotten, but those words are within the nomenclature of the bill. I am rising to question the competency of the federal parliament to pass this bill. We all know that under section 91 of the British North America Act certain powers are given to the dominion parliament to deal specifically with matters apart from those given to the provinces under section 92. This bill, from the very best of motives, may seek to make a meritorious change in the existing law, but before making this amendment, which does go a long way, we should see whether this parliament has power to give effect to it. I have had the opportunity of referring to a number of decisions, and I think before we pass this bill we should have an opinion from the Department of Justice on the question of jurisdiction that it involves. Briefly it appears to me that the only way in which the dominion parliament can have competence in a matter of this kind having to do with civil rights is by saying that this is not one of the specific powers delegated to the provinces by section 92 but is a specific power given by section 91 to the dominion parliament or a general power not given to the provinces by section 92. In the case of Toronto Electric Commission v. Snider, 1925, 2 D.L.R. page 16, their lordships held that in approaching problems of jurisdiction in matters of this kind we should ask ourselves: (1) does the subject matter fall within section 92; and (2) does the subject matter fall within section 91 of the British North America Act? If it falls within neither of the enumerated heads, then the dominion has power under the general wording of section 91. In the case of the Attorney General for Canada v. the Attorney General for Alberta, their lordships gave this decision: It is their lordships' opinion, now clear, that excepting so far as the power can be involved in aid of capacity conferred independently under other words of section 91, the power to regulate trade and commerce cannot be relied upon as enabling the dominion parliament to regulate civil rights in the provinces. , The same decision has been given in a number of other cases decided not only by the courts of Canada but in some cases by the privy council, and I mention specifically the famous Wharton case, 1914, 18 D.L.R., page 335; Rex v. Collins, 1926, 4 D.L.R., page 548, and King v. Eastern Terminal Elevator Company, 1925, 5 D.L.R., page 1. In these cases questions of this kind came specifically before the court, and it was held that as civil rights were specifically assigned to the provinces to deal with, the power of sale falls within that zone. This bill seems to say that no one can sell or offer for sale certain commodities. It goes further than that and restricts it to food or drugs. In order to make this act effective I think the question of jurisdiction should be examined very carefully. In my opinion provincial enactments are necessary to give validity to legislation of this kind. By the act very wide power is given to the dominion to interfere with the sale of what are called drugs, and perhaps appliances, foods or materials. The meaning of "drugs" under this amendment will be greatly extended. Explanatory note 1 says: It is therefore considered desirable that such authority be given in the interest of the public. Any regulations made under this authority will, for the most part, deal with newly-discovered drugs. That protection may be required, but I see nothing in the bill to restrict its operation to newly discovered drugs. It goes much beyond that. I would therefore ask the minister to indicate at least the scope of the amended act and the opinion of the Department of Justice as to the competency of this parliament to pass such an act, and state whether or not to infringe upon the rights of the provinces given under the British North America Act. We should be very careful about questions of jurisdiction.


LIB

Brooke Claxton (Minister of National Health and Welfare)

Liberal

Hon. BROOKE CLAXTON (Minister of National Health and Welfare):

Mr. Speaker,

this bill, which comes to us from the senate, has four sections. It makes what are intended

Food and Drugs Act

to be technical and non-controversial amendments in the Food and Drugs Act so as to permit of its being administered and applied to the greater advantage of the people of Canada. The remarks of the hon. member for Carleton (Mr. Boucher) relate I think exclusively to the provisions of section 1 of the bill, under which the governor in council may have the power to pass regulations "defining the conditions of sale of any drug". The Department of Justice has been asked for an opinion on the validity of this legislation and has expressed the view that it is constitutional.

The Food and1 Drugs Act has a long ancestry. It dates back to the Adulteration Act of 1875, which was incorporated in the new Food and Drugs Act of 1920. The validity of the act and of the regulations passed under it was only challenged in one case as far as I know, that of Standard Sausage Company v. Lee, in which the British Columbia court of appeal unanimously affirmed the validity of the legislation.

The position taken by the hon. member for Carleton is, I understand, based on the proposed "defining the conditions of sale of any drug" being too wide and unrestricted. If those words were taken without reference to the general scope of the act it might well be feared that the federal government would seek to regulate conditions of sale of drugs in a way which related to property and civil rights and not to any of the powers of the federal government. We have considered that, and while it is never the intention to do anything beyond the general scope of this act or of the federal government-that of course is unquestioned-we have thought that in consequence of representations made on behalf of the pharmaceutical druggists of Canada it might be a good thing to limit this power, since it probably goes beyond anything which we might ever expect to exercise. In consequence I propose, when we reach the committee stage, to ask one of my colleagues to add at the end of paragraph (kk) the words "in the interest and for the protection of the public health", so as to make it quite clear that this additional power to make regulations would be definitely limited to the general scope of the act; that is, to regulations defining the conditions of sale of any drugs in the interest and for the protection of the public health". In other words the Department of National Health and Welfare, as part of the duty conferred upon it by this measure, seeks to carry out the provisions of the act in the interest of the health and welfare of the people of Canada but not from the point of view of any commercial interest.

Whether or not that could be done by the federal government does not enter into consideration here; that is not the intention; and in order to show more clearly what is the intention than was done in the bill which was put before the house I propose to ask a colleague when we reach the committee stage to move the amendment I have just read to the house.

I may say also that after the representations wTere made by representatives of the pharmaceutical trade we had a discussion with them, and I communicated the text of this amendment to them and they felt that that would take care of the situation.

Topic:   FOOD AND DRUGS ACT
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PC

Thomas Langton Church

Progressive Conservative

Mr. T. L. CHURCH (Broadview):

Mr. Speaker, this is a very important bill, and I suggest to the minister that there are three or four matters he might consider in relation to it. We have a committee of this house known as the committee on pensions and health. How does it come about that, on the eighty-fourth day of this session, this bill has not been before that committee? When the bill was introduced in another place there was a two-line debate; it went to a committee on second reading without any debate, nor was there any debate on third reading; then it came here.

Aou know, Mr. Speaker, that after every great war there is a deluge of medicines advertised on the market. The principles of this bill are contained in two sentences of the explanatory notes, which begin:

This1 is to permit of regulations being made for the protection of the pubic respecting the sale of any drug.

Nowadays most of the city papers are filled with advertisements of drugs, patent medicines, salves, and so on, any one of which is supposed to be a cure for ten or fifteen different diseases which have baffled the medical profession for many years. You can walk into a grocery store and buy them; you can buy them in departmental stores and elsewhere.

In 1927 the general Food and Drugs Act now to be amended evidently contained sufficient protection for the public, but, to quote the notes:

The present act limits such power-

That is, to sell drugs.

->to a substance which may be injurious to health. .

One of the clauses refers to a commodity which contains rotten or diseased animal or vegetable substance. The hon. member for Temiscouata (Mr. Pouliot) complained for years about drugs in liquid form-gin-which contain injurious ingredients, and on one occasion, discussing the matter with the then

JULY 19, i946

Food and Drugs Act

minister of health (Mr. Mackenzie) as an amateur to an expert he said he had had a chemical analysis made and it was not Holland gin and not gin at all.

Since the close of the war the act as it stands does not provide sufficient protection-

inasmuch as new drugs are being discovered which, until their full effect is known over a period of time, may . . . prove to be injurious to health.

Now. you have to read, with the sections of the act which the minister is amending, the regulations of the wartime prices and trade board. They passed absurd regulations which every drug store is compelled to carry out. What are those regulations? Well, if a medical doctor gives a man, be he rich or poor, a prescription, it can be filled only once; he has to go back to the medical man to get another order before the druggist will fill it. Sometimes these stores are closed at the week-end, and it reacts to the inconvenience of the public, particularly to people of the poorer classes in the cities and towns when a drug store is closed.

I cannot understand the present health act procedure. We have a committee on health; let us have a real committee on health, and do something, not come down to the house on the eighty-fourth day of the session saying: *"Here is a bill; pass it." This bill should have been properly considered by our health committee. May I ask the minister whether the representatives of the drug interests or of the college of pharmacy were before the committee in the other place?-because certainly they have had no opportunity to examine this bill.

Mind1 you, I am not opposing the bill. I believe the restrictions to-day are not what they should be. Drugs are being sold as such which are not drugs at all. Various mixtures and chemical compounds have been prepared and advertised in the newspapers, in three or four-line advertisements, "Communicate by letter or telephone with so and so, who has got a cure." We need an act which is a real health act to protect the public from all this quackery.

Not only that; a lot of things have been placed on the market which are poisoning the people-all kinds of moonshine. From health officers and from the college of physicians and others complaints have come about the loose way in which this particular problem is being handled. The time has come for a drastic national health reform, so that the consumer public will be protected, so that the people will know what are proper or at least noninjurious remedies. Some companies in the olden days used to get out almanacs at Christmas time of drugs which were a cure for

everything. If the Food and Drugs Act is to be properly administered there should be an attempt to deal with some of the offenders, and have an examination of some of the awful stuff people take which one hears about in the magistrates' and coroners' courts. The public are complaining about the different poisons which are put out-"hair tonics" and all that sort of thing; you can buy them right on the market. What is the department doing about it? The Department of Justice will not do anything. They refer complaints to the attorneys general of the provinces, and all they do is to refer it to the city and town and county police.

We need a reformation regarding the use of some of these drugs, the things which some poor people are drinking all day long, poisoning themselves. In fact many small children have been poisoned, because when the mothers and fathers are out some of them go to the cupboard and take a pill or something else of this kind.

Not only that, but I wish to say that if we are to have a department let us have a real one, not one which can do nothing more than say, on the eighty-fourth day of the session, "Pass this bill or leave it." Mind you, I believe the department may do quite a lot in protecting the consumer public. But there is no doubt that we should start on legislation like this early in the session. There are other measures which were placed on the order paper only yesterday. There are a large number of bills as to which we should have the opportunity of consulting professional men, legal men, physicians, dentists, veterinarians, and the college of pharmacy, but there is no opportunity of doing so here in the middle of July, when everybody is away.

So far as the principle of the bill is concerned I support it. Something must be done to curb the sale of the poisons which are now being sold, without proper control-I will not say in the drug stores, because the proprietors are good professional men who alike in peace and war have done laborious and efficient work-I do not know what we would have done without them-but considerable sales are made in some small corner general stores. Most of these remedies advertise in the papers, and you can get a bottle or two almost for the asking-three bottles for 50 cents while one bottle is "worth" 35 cents.

As I have said, the hon. member for Temis-couata started this discussion the year before last, to bring the Food and Drugs Act up to date, but nothing has been done to protect the public. I do hope we shall have drastic reform in this particular branch of health protection, so that the consumer public will be protected,

Food and Drugs Act

while legitimate drug stores are free dfrom some of Donald Gordon's regulations. One is that a physician cannot fill a prescription available for more than one order; he has to write a new prescription. I tell you, the public are sick and tired of that kind of bureaucracy, a year after the war has ended.

Topic:   FOOD AND DRUGS ACT
Subtopic:   LIMITATIONS UPON IMPORTATION AND SALE TO GENERAL PUBLIC
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Motion agreed to, bill read the second time, and the house went into committee thereon, Mr. Macdonald (Brantford City) in the chair. On section 1.


LIB

Brooke Claxton (Minister of National Health and Welfare)

Liberal

Mr. CLAXTON:

The main purpose that we have immediately in mind in this section is to regulate the sale of penicillin. That is already done in the United States and in the United Kingdom. The reason for seeking that power is that we have not the power under existing legislation and it is considered desirable by a large proportion of the medical profession, as well as by representatives of the provinces and officers of the department, that for some time at least penicillin should be sold only on a doctor's prescription.

Penicillin, so far as we know, is not injurious in itself, but it can be used in a way which may be injurious to the user if not used under a doctor's control. The reason is this: It is a very powerful drug; it is popularly described as a miracle worker, as indeed it is, when properly used. But some people have the idea that if they go to a druggist and buy some penicillin they are almost certain to be cured of any one of a number of diseases, including particularly gonorrhea and syphilis. Penicillin, used in the right doses and in the right way and at the right time, is a cure for gonorrhea and has a powerful effect on syphilis; but used in the wrong doses or in the wrong way or at the wrong time, it not only does not cure the disease but may itself set up immunity against the proper used of penicillin. In other words, the improper use of penicillin may not only fail to effect a cure but may prevent the proper use of the drug as a means of effecting the cure.

There are a number of drugs that work in that way and penicillin is said to be one of them. Further, the use of penicillin without proper advice may lead to certain germs of infection being killed by bringing into operation others which have been kept under control by the germs which are killed off. That has been pointed out in medical journals and in medical experience, and for these reasons we believe it is necessary for the time being at least to regulate penicillin and require that it be sold under doctor's prescription.

It is not the policy of the act to name single drugs, and we have not named penicillin or limited this power to pencillin because of the

LMr. Church.]

fact that exactly the same considerations apply to some of the other new drugs and also to streptomycin, and other drugs that may be brought into use from day to day, since the development of these new drugs is exceedingly rapid.

For that reason we have sought this power, which is along the lines of similar powers exercised in the United States and the United Kingdom. However, in order to limit it in accordance with the suggestion of the representatives of the trade, I am going to ask. my colleague the Secretary of State to move an amendment to section 1 of the bill.

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LIB

Paul Joseph James Martin (Secretary of State of Canada)

Liberal

Mr. MARTIN:

I move that section 1 of bill 252, letter X-9 of the Senate, being an act to amend the Food and Drugs Act, be amended by adding at the end thereof, "in the interest and for the protection of the public."

Topic:   FOOD AND DRUGS ACT
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?

Mr. COLD WELL@

What control does the government exercise over the manufacture and distribution of penicillin? I am in agreement with giving the government control of these new drugs. It is essential, and the minister is quite right that the unguided use of penicillin may lead to some other difficulties after the drug has been used. People may use it to heal a cut or a wound or to get rid of a sore and then find that a disagreeable rash develops. I have knowledge of at least two instances in which this has happened. A physician has prescribed penicillin for the healing of a sore or for some other trouble of the kind, and afterwards there has developed a serious rash. I agree that the drug should be controlled. Many drugs are very simple things. They do not entail a great deal of expense in the manufacture and yet when people have to get them on a doctor's prescription they often find that apart from the cost of the prescription-no one objects to that, because the doctor usually does more than write a prescription-they are very expensive. Sometimes these things are patented; I do not know whether penicillin is patented or not. I see the minister shakes his head; I am glad to learn that it is not. What control is exercised in the manufacture and the distribution in order that the public may not be victimized by the price charged for this efficient drug?

Topic:   FOOD AND DRUGS ACT
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LIB

Brooke Claxton (Minister of National Health and Welfare)

Liberal

Mr. CLAXTON:

The question of price

does not come under the control of this department, but under the wartime prices and trade board which has exercised close control over the price of drugs. However, I do know something about the situation and I shall give the hon. member the information as well as I can. The function of this department with

Food and Drugs Act

regard to drugs is to control their potency and purity. We have standards, usually international standards, which are enforced rigorously through sampling drugs through purchase at retail as well as through obtaining them from the manufacturers and wholesalers. This is done by spot sampling as well as by taking whole shipments of certain drugs. They are analysed by the department's officials, and if anything is wrong with them or if they do not conform with the pharmacopoeia requirements, they will be rejected and appropriate action will be taken. Therefore we do control the purity and potency of drugs. We generally get splendid cooperation in that respect from the manufacturers and the trade.

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PC

John Thomas Hackett

Progressive Conservative

Mr. HACKETT:

When the minister says that the department controls, does he mean that it prescribes what shall be the potency?

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LIB

Brooke Claxton (Minister of National Health and Welfare)

Liberal

Mr. CLAXTON:

Yes.

Topic:   FOOD AND DRUGS ACT
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PC

John Thomas Hackett

Progressive Conservative

Mr. HACKETT:

Or that it insists that the drug shall be accurately described?

Topic:   FOOD AND DRUGS ACT
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LIB

Brooke Claxton (Minister of National Health and Welfare)

Liberal

Mr. CLAXTON:

Both. The potency must be as laid down in- the international standard pharmacopoeia, or as worked out by the department, and then the drug itself must conform to that standard and be pure within the standard laid down. We also control the labelling of drugs so as to ensure that where it is desirable that the content of the drug be accurately described, it is accurately set out in accordance with the regulations.

With regard to penicillin, this drug, as everyone knows, came into existence in consequence of the work of a great number of scientists and others, of whom the principal was Sir Alexander Fleming. It came into commercial production early in the war, in the United States first. In Canada it was and still is made, I understand, in three factories. The first is the Connaught Laboratories in Toronto. This institution is, as I recall it, the joint enterprise of the university of Toronto and the Ontario school of hygiene, in which the province of Ontario has an active interest, There the money necessary to put up the plant was expended by the federal government. The penicillin itself is produced at cost and was distributed at first for the use of the armed forces, and then more generally. The second plant in which it was made in Canada was that of Ay erst, McKenna and Harrison, at St. Laurent, near Montreal, where the federal government paid for the cost of the building and the company made the drug. The third place for Merck Incorporated, in their plant near Montreal. There the drug was made without any government assistance. At first the price was quite high,

owing to the fact that while it is not patented, it is technically a very difficult thing to make, and the techniques of making it had to be worked out. That was gradually done and the price was rapidly brought down until now it is approximately the same in the United States and Canada. Perhaps owing to the change in exchange it may be lower in Canada. I believe it is a reasonable price for the product in present circumstances.

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PC

George Russell Boucher

Progressive Conservative

Mr. BOUCHER:

Speaking to this amendment I wonder whether we should not commend the minister for it, but I object to the fact that it embraces much more than drugs. According to the minister's statement his object is to restrict and control the sale of certain drugs, or many drugs, but the amendment goes beyond drugs and includes foods and appliances. Apparently some protection should be given the public in that regard, but it seems to me that this section does not strike at the root of the trouble. If paragraph (KK) were worded to restrict the salability of drugs, appliances, foods and so on, a much better vehicle would be used to achieve the object the minister has in mind, and which I commend. But this amendment goes much farther than that. It gives power to define the conditions of sale of any drug. Then it goes so far as to say that any drug shall be considered to include foods and appliances. Under the amendment we are giving the department power to make regulations far beyond the purpose of the amendment. The amendment makes the general act deal with specific matters. I think the powers of this amendment go beyond what are necessary.

The constitutionality of the amendment could be raised here. I do not think the amendment proposed by the minister makes the act any more constitutional than it was previously. It still deals with civil rights, even though it purports to relate only to national health. Instead of tacking it on to the classification of trade and commerce under the British North America Act it is being tacked on to the rights of national health. You are going from one specific power given to the Dominion of Canada under the British North America Act to another. I do not think it achieves the aim behind the amendment at all. The bill should be referred to a committee which will not only appreciate the minister's intentions, aims and objects, but also the necessity of restricting the amendment to its intention. If we do that we shall be taking a step that will be advantageous instead of dangerous. I urge the minister to give serious consideration to this aspect of the

Food and Drugs Act

situation. I know every hon. member of the committee feels that the public needs and deserves the protection that the minister wishes to give, but it does seem ridiculous to ask parliament to pass a bill of the scope and authority of this one, simply because of the explanatory note which says:

Any regulations made under this authority will, for the most part, deal with newly-diseovered drugs.

There are many old drugs, and the fact that this explanation is given in the explanatory note does not in any way limit the scope of its operation. I earnestly appeal to the minister not to rush this bill through. I do not think we have to pass it to-day, and I would ask that it be referred to a committee on health matters which would give mature and extensive consideration to the object the minister has in mind.

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LIB

Brooke Claxton (Minister of National Health and Welfare)

Liberal

Mr. CLAXTON:

I can assure the hon. member that I have given careful attention to . his remarks, and to this point, as have the officers concerned. As I understand it, we cannot be very far apart. If I took his words down correctly-and I was careful in doing so-he said that this power should be limited. These are his words: "by way of restricting salability of any drug". The power here is that of defining conditions of sale of any drug, in the interest of and for the protection nf public health. I cannot see any difference n substance between the words the hon. member suggests we use, and the words we have used in the amendment.

This has been given most serious consideration. The amendment I have suggested has been put forward following representations from the trade. Representatives of the trade have expressed their satisfaction with it as meeting their point of view. I have received no representations from anyone, although this has been before the senate and has been a matter of public knowledge for about a month. It was discussed by the senate committee on health, and, so far as I know, no representations were made there. I feel the matter has been considered adequately, that the section with the amendment I have proposed does what we want it to do, that it is effectively restricted, and that it is in the public interest to pass the measure.

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PC

James MacKerras Macdonnell

Progressive Conservative

Mr. MACDONNELL (Muskoka-Ontario):

May I add a word of comment to what the minister has said? It is this: I have listened to what has been said by the hon. member for Carleton, and I would suggest to the minister that certain inquiries have -been made. I know that-though why they were not made to the senate, I do not know.

This is a Friday afternoon, when many hon. members are absent. I have one in mind who I know would like to have been here. We have devoted only about fifteen minutes to this measure. Unless the matter is regarded as being entirely open and shut, and it is not worth taking another look at it for the purpose of trying to arrive at a view which would be satisfactory all round, I would support the suggestion of the hon. member for Carleton.

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LIB

Brooke Claxton (Minister of National Health and Welfare)

Liberal

Mr. CLAXTON:

As the hon. member for Broadview has said, this is the eighty-fourth day of the session. The bill has been before the senate for some time, and has been on our order paper for more than a week. I have received no representations regarding it from anyone. I do believe it is the kind of technical and non-controversial matter which, in the absence of serious objection from anyone on grounds of principle, should be disposed of.

I believe it is the wish of hon. members to dispose of these matters, unless there is some serious reason for not doing so. Apart from the representation we have heard to-day, I have not received any representations about this matter, nor, so far as I know, did the senate. So that in the absence of such views I do not feel it would serve the interests of the public or of this house if delay were permitted, unless some good reason is advanced for that delay. There is no disposition on the part of the government to push this through, but we believe it is in the public interest that the bill should be passed. In view of these points I would ask the committee to allow the section to carry.

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July 19, 1946