164
Breyer, J., dissenting
that Congress, rather than an administrative agency, ought to make this important regulatory decision.
I
Before 1938, the federal Pure Food and Drug Act contained only two jurisdictional definitions of "drug":
"[1] medicines and preparations recognized in the United States Pharmacopoeia or National Formulary . . . and [2] any substance or mixture of substances intended to be used for the cure, mitigation, or prevention of disease." Act of June 30, 1906, ch. 3915, § 6, 34 Stat. 769.
In 1938, Congress added a third definition, relevant here:
"(3) articles (other than food) intended to affect the structure or any function of the body . . . ." Act of June 25, 1938, ch. 675, § 201(g), 52 Stat. 1041 (codified at 21 U. S. C. § 321(g)(1)(C)).
It also added a similar definition in respect to a "device." See § 201(h), 52 Stat. 1041 (codified at 21 U. S. C. § 321(h)). As I have mentioned, the literal language of the third definition and the FDCA's general purpose both strongly support a projurisdiction reading of the statute. See supra, at 161-162.
The statute's history offers further support. The FDA drafted the new language, and it testified before Congress that the third definition would expand the FDCA's jurisdictional scope significantly. See Hearings on S. 1944 before a Subcommittee of the Senate Committee on Commerce, 73d Cong., 2d Sess., 15-16 (1933), reprinted in 1 FDA, Legislative History of the Federal Food, Drug, and Cosmetic Act and Its Amendments 107-108 (1979) (hereinafter Leg. Hist.). Indeed, "[t]he purpose" of the new definition was to "make possible the regulation of a great many products that have been found on the market that cannot be alleged to be treatments for diseased conditions." Id., at 108. While the drafters focused specifically upon the need to give the FDA jurisdiction
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