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AMENDING SECTION 8 OF THE PURE FOOD AND DRUGS ᎪᏟᎢ .

NOVEMBER 1, 1919.-Referred to the House Calendar and ordered to be printed.

Mr. HAUGEN, from the Committee on Agriculture, submitted the following

REPORT.

[To accompany H. R. 10311.]

The Committee on Agriculture, to whom was referred the bill (H. R. 10311) to further amend section 8 of an act entitled "An act for preventing the manufacture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, and liquors, and for regulating traffic therein, and for other purposes, approved June 30, 1906, and amended by the act approved March 3, 1913, having considered the same, report thereon with a recommendation that it do pass.

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The bill reported herewith proposes to amend the pure food and drugs act so as to protect the public against deception as to the contents of containers. The bill is as follows:

[H. R. 10311, Sixty-sixth Congress, first session.]

A BILL To further amend section 8 of an act entitled "An act for preventing the manufacture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, and liquors, and for regulating traffic therein, and for other purposes," approved June 30, 1906, and amended by the act approved March 3, 1913.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 8 of an act entitled "An act for preventing the manufacture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, and liquors, and for regulating traffic therein, and for other prrposes," approved June 30, 1906, and amended by the act of March 3, 1913, be, and the same is hereby, amended in the following particulars:

(1) By striking out the period at the end of paragraph "Second," in said section 8, in case of foods and inserting in lieu thereof a semicolon, and adding the following clause: "or if it be in a container so made, formed, or shaped as likely to deceive or mislead the purchaser as to quantity, quality, size, kind, or origin of the food therein." (2) By adding at the end of section 8, in case of food, as amended, a new paragraph, as follows:

"Fifth. If in the package form, and irrespective of whether or not the quantity of the contents be plainly and conspicuously marked on the outside of the package in terms of weight, measure, or numerical count, as provided in paragraph "Third" of

said section 8 as amended, the package be not filled with the food it purports to contain: Provided, however, That reasonable variations and tolerances may be estab lished by rules and regulations made in accordance with the provisions of section 3 of this act."

Provided, however, That no penalty of fine, imprisonment, or confiscation shall be enforced for any violation of the provisions of this amendment as to domestic products shipped in interstate commerce or sold or offered for sale in the District of Columbia or in the Territories of the United States prior to or within six months after the enactment hereof, or as to products imported prior to or within six months from the enactment hereof: And provided further, That nothing in this amendment shall affect or be construed to affect any violation of the food and drugs act of June 30, 1906, as heretofore amended, or impair or be construed to impair any right of action or remedy thereunder.

Section 8 of the pure food and drugs act, which it is proposed to amend, is as follows:

SEC. 8. That the term "misbranded" as used herein shall apply to all drugs or articles of food or articles which enter into the composition of food the package or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular, and to any food or drug product which is falsely branded as to the State, Territory, or country in which it is manufactured or produced.

That for the purposes of this act an article shall also be deemed to be misbranded: In case of drugs:

First. If it be an imitation of or offered for sale under the name of another article. Second. If the contents of the package as originally put up shall have been removed in whole or in part and other contents shall have been placed in such package, or if the package fail to bear a statement on the label of the quantity or proportion of any alcohol, morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetanilide, or any derivative or preparation of any such substances contained therein.

Third. If its package or label shall bear or contain any statement, design, or device regarding the curative or therapeutic effect of such article or any of the ingredients or substances contained therein which is false and fraudulent.

In the case of food:

First. If it be an imitation of or offered for sale under the distinctive name of another article.

Second. If it be labeled or branded so as to deceive or mislead the purchaser or purport to be a foreign product when not so, or if the contents of the package as orig. inally put up shall have been removed in whole or in part and other contents shall have been placed in such package, or if it fail to bear a statement on the label of the quantity or proportion of any morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetanilide, or any derivative or preparation of any such substances contained therein.

Third. If in package form the quantity of the contents be not plainly and conspicuously marked on the outside of the package in terms of weight, measure, or numerical count: Provided, however, That reasonable variations shall be permitted, and tolerances, and also exemptions as to small packages shall be established by rules and regulations made in accordance with the provisions of section 3 of this act. Fourth. If the package containing it or its label shall bear any statement, design, or device regarding the ingredients or the substances contained therein which statement, design, or device shall be false or misleading in any particular: Provided, That an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following

cases:

First. In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, if the name be accompanied on the same label or brand with a statement of the place where said article has been manufactured or produced.

Second. In the case of articles labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends, and the word "compound," "imitation," or "blend," as the case may be, is plainly stated on the package in which it is offered for sale: Provided, That the term blend as used herein shall be construed to mean a mixture of like substances, not excluding harmless coloring or flavoring ingredients used for the purpose of coloring and flavoring only: And provided further,

That nothing in this act shall be construed as requiring or compelling proprietors or manufacturers of proprietary foods which contain no unwholesome added ingredient to disclose their trade formulas, except in so far as the provisions of this act may require to secure freedom from adulteration or misbranding.

Hearings on the proposed amendments were held by the committee on October 27, 28, and 30. The Department of Agriculture submitted a statement dealing with two types of fraudulent packages that have come to the attention of the department in the course of its administration of the pure food and drugs act. It is believed that these types of fraudulent packages will be eliminated by the enactment of the proposed amendments.

The statement referred to is as follows:

The first type is that commonly known as the "slack-filled package," frequently used in the marketing of spices, pepper, and other condiments, oatmeal, rice, macaroni, and like articles. These packages are partly filled with food, in some instances to but one-third of their true capacity. They are designed to mislead the consumer as to the quantity of food purchased and to exact from him a price based on the apparent rather than the true quantity of the article thus packaged. This type of package not only tends to the deception of the consumer but to promote unfair competition. since that portion of the trade dealing with honestly filled packages of food is detrimentally affected by the competition of the package which is slack filled.

While it is true that these packages usually are marked in some manner with a statement of the quantity of contents in conformity with the provisions of the, netweight amendment to section 8 of the Federal food and drugs act (37 Stat. 732), purchasers are nevertheless deceived because they rely on the appearance and size of the package to indicate the quantity of food contained therein, and where the discrepancy between the size of the package and the amount of food contained therein is so great the marking of the weight is an insufficient means of apprising the purchaser as to the actual amount of food purchased.

The second type of fraudulent package which, in the opinion of the department, should be dealt with by way of further amendment to the food and drugs act is that which is contrived to give the purchaser a false impression as to the quantity, quality, size, kind, or origin of the food contained therein. This type may be instanced by the following examples: Bottles with inverted bottoms designed to falsely indicate a greater quantity of food than is actually present; bottles made of thickened glass for olives, preserved whole cherries, and strawberries, especially designed to magnify the size of the individual olive or fruit and to conceal, in the case of olives, the interstices between each, thus giving to the consumer a false indication both as to the quality and amount of the contents.

The suggested amendments were based upon information developed by the department in the course of its administration of the net-weight provisions of the food and drugs act, which shows that certain forms of package food, notably spices, condiments, and cereals, are often marketed in containers which are only half filled; that certain canned foods contain an excess of liquid such as water or syrup, and a deficiency of food material. These deceptive packages afford a convenient vehicle for covert increases in the cost of food articles to the consumer.

While the present provisions of the food and drugs act do not reach this form of deception, the general purpose and structure of this statute is such that with slight amendment its provisions could be readily extended so as to include within the definition of misbranding all forms of deceptive food packages.

During the hearings on the proposed amendments a number of exhibits were brought before the committee by the Department of Agriculture and others, illustrating the types of fraudulent packages. A statement taken from the reports of the hearings, showing the nature of the exhibits and the percentage of space filled, is as follows:

EXHIBIT OF SLACK-FILLED AND DECEPTIVE PACKAGES OF FOOD PRODUCTS SUBMITTED IN CONNECTION WITH THE HEARING ON H. R. 8954 BEFORE THE HOUSE AGRICULTURAL COMMITTEE.

This exhibit has been selected from three sources:

1. Samples collected by our inspectors as appearing deceptive to them and referred to the bureau for any action which might be taken under the food and drugs act in its present form.

2. Samples found by competitors and referred to the bureau for redress and relief. 3. Samples referred to the bureau by individuals who felt that they were being deceived.

The sources, viz, bureau inspectors, business men, and private individuals, show the scope of the deception which is illustrated by this exhibit.

The packages were exhibited in the order of the numbers on them. They are grouped below to illustrate two points—(1) slack filling, (2) deceptive packages.

1. SLACK-FILLED PACKAGES.

These cartons bear a paper sticker which shows the amount of unfilled portion when they contain the amount of food declared on the label. These exhibits show the variety of products in which and the amount to which slack filling is practiced: Exhibit No. 6. One spaghetti carton, labeled and containing 7 ounces, one-third full. Exhibit No. 7. One macaroni carton, labeled and containing 7 ounces, two-thirds

full. Exhibit No. 8. One noodle carton, labeled and containing 2 ounces, one-third full. Exhibit No. 15. One potato-chip carton, labeled and containing 3 ounces, one-half full. Exhibit No. 9. One pepper can, labeled and containing 2 ounces, two thirds full. Exhibit No. 10. One pepper can, labeled and containing three-fourths ounce, onefourth full.

Exhibit No. 12. One pepper carton labeled and containing three-fourths ounce, one-third full. Exhibit No. 11. One tea carton labeled and containing 2 ounces, two-thirds full. Exhibit No. 13. One nutmeg can labeled and containing one-half ounce, one-third full.

Exhibit No. 14. One coconut carton labeled and containing 2 ounces, two-thirds full. Exhibit No. 16. One pickling-spice carton with window pane, filled just to top of window.

Exhibit No. 17. One mustard-seed carton with window pane, filled just to top of window.

3. One pepper can labeled three-fourths ounce, accompanied by a newspaper advertisement advertising this package as containing 1 ounce, and also a letter of complaint in regard to the package.

These exhibits illustrate slack filling by comparison with a full package:

Exhibit No. 2. Two pepper cans, both same size, one labeled 2 ounces, the other labeled 4 ounces.

Exhibit No. 18. Two cinnamon cartons, both same size, one labeled 14 ounces, the other labeled 2 ounces.

Exhibit No. 19. One nutmeg can labeled 1 ounce and one mustard can labeled 34 ounces, both same size.

Exhibit No. 24. Two coffee and chicory cartons, one labeled 1 pound and the other labeled 14 ounces, both same size and sold by same firm.

Exhibit No. 20. One cinnamon carton used for both 14 and 2 ounces by one firm. Exhibit No. 23. One Jiffy-Jell carton labeled 34 ounces in black print with 2 ounces stamped over the 34, showing a reduction of declaration of contents without a reduction in size of package.

2. DECEPTIVE PACKAGES.

Exhibit No. 1. One candy box labeled 1 pound; has false bottom which occupies 25 per cent of the total capacity of the box.

Exhibit No. 21. One pepper carton labeled three-fourths ounce, contains three fourths ounce pepper wrapped in a large amount of heavy paper.

Exhibit No. 22. One food dessert carton; contains a large amount of heavy paper in which the product was wrapped to help to fill carton.

Exhibit No. 25. One ginger-snap package; both ends of the package are "set in” three-fourths to 1 inch.

Exhibit No. 26. One marshmallow carton with "raised bottom."

Exhibit No. 27. One Fernet-Brance bottle with raised bottom; contains 28 ounces; without the raised bottom would contain 30 ounces.

Exhibit No. 29. One olive bottle; has the appearance of a column of globes; has a magnifying effect on the contents.

Exhibit No. 4. Five sheets of photographs of bottles showing how the capacity of bottles is decreased by increasing the weight.

Exhibit No. 5. Four bottles on a cardboard; two panel bottles containing 17 and 2 ounces; appear to be twice as large as plain bottles containing 2 ounces.

There seems to be no question in the minds of the members of the committee and the witnesses who appeared before the committee but that much deception is being perpetrated upon the consumer by the fraudulent appearance of containers.

The testimony before the committee would indicate that the practice of deception by partially filling containers and by using containers which appear to hold a greater quantity than they do actually hold has increased tremendously in the past two years, due perhaps largely to the fact that foodstuffs have been scarce and have rapidly increased cost during the war. In many instances manufacturers have been using the containers they had on hand, only partially filling them, rather than reducing the size of the package or filling it completely and increasing its price. The testimony further states that many, due to competition, unwillingly were forced to resort to this practice. Although to some extent the practice may have been justifiable during the war, in the opinion of the committee, it is not considered so now and should be discontinued.

In view of the fact that one, or a few, can force through competition the use of this deceptive practice, it is believed that legislation such as is proposed in this bill is the only means of protecting the reputable merchant against disreputable practice, the consumer against fraud and deception, and eliminating the practice. The committee recommends that the bill be passed.

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