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Clause 6—(Amendment Of Sale Of Food And Drugs Acts)

Volume 65: debated on Thursday 30 July 1914

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The provisions of the Sale of Food and Drugs Acts, 1875 to 1907, in reference to the taking of samples of milk, and any proceedings in connection therewith, shall be amended in accordance with the provisions contained in the Second Schedule to this Act.

Amendment made: Leave out "Second" and insert "Third."—[ Mr. Herbert Samuel.]

I beg to move, at the end of the Clause, to add the words,

"So much of any contract, whether made before or after the passing of this Act, as requires a purveyor of milk on a sample of his milk being taken under the Sale of Food and Drugs Acts, 1875 to 1907, to send to the person from whom he procured the milk any part of such sample or to give such person notice that a sample has been so taken, shall be null and void."
This Amendment is rendered necessary by some other provisions of the Bill which have been referred to in the Debate by the right hon. Gentleman as the "following-up process." What is to happen under the Bill if it becomes law? When the authorities at present take a sample from a retail dairyman in London it is sometimes found that he has a warranty for the milk. In a Schedule of this Bill it is provided that in future the authorities may take samples from subsequent deliveries of milk from the same supply in order that some check may in that way be afforded as to the character of the milk which is being delivered at that time. As hon. Members know, in cases under the Sale of Food and Drugs Act where milk is involved there is often great controversy in Court as to whether the wholesale dealer supplied adulterated milk and whether the retailer sold it as he received it. A warranty is pleaded, and if the retailer proves that he sold the milk as he received it he escapes. The difficulty at present is that you cannot convict anybody, because if you have to proceed against the wholesaler it is almost impossible to prove that he supplied adulterated milk. The later provisions in this Bill provide some means for checking the truth of the statement of the wholesaler. For the first time when the authorities take a sample from a London retailer on Monday morning he will be able to say, "I have the milk from a certain wholesaler, and the next delivery will be to-night or to-morrow morning." The authorities will take a sample from the supply when it comes in the later deliveries. That will be same guidance to the Court as to whether the wholesale people are really tampering with the milk.

When that provision appeared in the Bill a number of London dairymen called attention to a practice which would make this "following-up process" worthless. A large number of small dairymen get their supplies from large wholesale suppliers in London, and I am told that the same remark applies to other large towns. They get it under contract. Part of the contract is that the milk is warranted, but there is also a clause in the contract that a retailer, immediately the authorities take a sample from him, shall communicate with the wholesaler and send to him the sample which has been left with the retailer. The House will see that if this is to go on there is no possible use of following up the sample, for if the authorities take a sample on Monday morning the retailer under his contract will immediately communicate with the wholesaler and send him the sample which has been left with him. The wholesalers will know that the authorities are sampling the milk, and when they send milk for subsequent deliveries during the next few days the supplies are certain to be all right, and instead of being of any value this provision in the Schedule will be a serious danger to the retailers. Therefore, I move the insertion of these words which would make the condition in the contract void. There is no need at all why the wholesaler should have the sample unless proceedings are subsequently taken. Then there would be the evidence of the third analysis. The object of the Amendment is to prevent the wholesaler from getting the sample which has been taken and given to the retailer. There would be no possible use in taking samples if the part left with the retailer is to be sent to the wholesaler.

I have had an opportunity of consulting my hon. Friend on this proposal. I certainly think that some such provision is necessary in order to prevent the purpose of this Act being defeated. I hope the House will accept the Amendment.

I hope the House will not accept the Amendment unless we have an explanation of its effect from the right hon. Gentleman. At first sight it appears that this Amendment is an ordinary precaution required in the interest of justice, but I am not at all satisfied with the explanation given by the hon. Gentleman who moved it. I hope the right hon. Gentleman will give the House the official version as to how this Clause, if amended in the way proposed, would work in practice.

I might have made a fuller statement in regard to the Amendment, but I did not anticipate that it would give rise to any criticism. As my hon. Friend has pointed out, a certain number of wholesalers do make it a condition in their contracts that when a retail tradesman has a sample taken he shall immediately inform them of the fact. Whenever samples of milk are taken they are divided into three parts. One is taken for analysis by the officer, one is handed over to the person from whom the sample is taken, and the third is kept in reserve for later analysis if there is any dispute as to the first analysis. The provisions of this Bill contemplate that when a sample has been taken from a retailer and it is found to be wrong in some way, he should have the right of telling the local authority to take a sample of milk on the way to him from the wholesaler, and that sample may be used as evidence in Court for what it is worth, if it is found that the first sample taken from the retailer's stock in course of delivery is adulterated. If it is found that milk subsequently supplied to him is delivered in the same condition, then, if the retailer is a person of honest character, and if he swears that he has not adulterated it, the presumption will be that the milk has been adulterated on the way to him. In Manchester, where there is no such provision in the contracts, this course has been followed with considerable success. I believe that all parties in Manchester are satisfied with the system. Justice is done, and the person who is really responsible for the adulteration is punished. It has been suggested by persons connected with the working of the milk trade that our purpose will be defeated entirely by the provision in the contract that when a sample is taken the retailer shall communicate with the wholesaler, because the wholesaler would be alarmed, and he would stop the adulteration of the milk, so that when it came to the retailer it would be found to be all right, and the probability is that the retailer would be convicted for selling adulterated milk. The wholesaler will not be prejudiced by this, because there is always the third sample of milk, and if the wholesaler disputes the accuracy of the analysis, he can always recur to the third sample and have that analysed, and so justice will be done as regards him. It appears to me that the proposal of my hon. Friend, which is drawn from the Manchester system, imposes no hardship or disability on the wholesale dealer.

The only thing I object to in the Amendment is that it is retrospective, and I do not see any object in that. If we can avoid it, I do not think that we should void contracts and I would ask the hon. Member if he would leave out the words "before or," so that the Amendment would read

"So much of any contract, whether made before or after the passing of this Act …."

The only difficulty about that is that contracts are made for long periods—sometimes six months, or even twelve months. If this Act came into force at once, the Clause would not apply to milk supplied until the expiration of current contracts.

We all know that that would not apply in the case of milk contracts made with farmers in this country.

Amendments made in proposed Amendments: Leave out the word "whether." Leave out the words "before or."

Proposed words, as amended, inserted in the Bill.