UNITED STATES SENATE, COMMITTEE ON AGRICULTURE AND FORESTRY, Washington, D. C. The committee, pursuant to call, at 10.30 o'clock a. m., in the room, 326 Senate Office Building, Senator Charles L. McNary. presiding. Present: Senators McNary (chairman), Keyes, Frazier, Gould, Ransdell, Kendrick, Wheeler, Thomas, and Shipstead. Also present: Senator Copeland of New York. The CHAIRMAN. The committee will be in order. I have requested the committee to meet this morning to consider H. R. 487, an act to amend the food and drug act. The bill passed the House of Representatives, March 4, the present year. (The bill is here printed in full as follows:) AN ACT To amend an act entitled "An act for preventing the manufacture, sale, or transportation of adul. terated or misbranded or poisonous or deleterious foods, drugs, medicines, and liquors, and for regulating traffic therein, and for other purposes," approved June 30, 1906, as amended Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 8 of the 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, as amended, is amended: (a) By striking out the period at the end of paragraph "Second," in the case of food, and inserting in lieu therof a semicolon, and adding thereafter the following clause: "or if it be in a container made, formed, or shaped so as to deceive or mislead the purchaser as to the quantity, quality, size, kind, or origin of the food contained therein"; and (b) By adding at the end thereof a new paragraph to read 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,' the package be less than filled with the food it purports to contain in such a manner as to deceive or mislead purchasers. In construing and applying this provision reasonable variations shall be permitted and also due allowance shall be made for the subsequent shrinkage or expansion of the food which results from a natural or other cause beyond reasonable control." SEC. 2. Such act of June 30, 1906, as amended, is amended by adding to the end thereof a new section to read as follows: "SEC. 14. That this act may be cited as the 'Food and Drugs Act."" SEC. 3. No fine, imprisonment, confiscation, refusal of admission or delivery, or other penalty shall be enforced for any violation of this amendatory act occurring within twelve months after its passage. The CHAIRMAN. The Department of Agriculture in a letter under date of March 27 reported favorably on the bill and suggested its prompt enactment by the Senate. Senator COPELAND. Is this the same as the Borah bill? 1 The CHAIRMAN. No, it is not, Senator. On May 4, I received from the Department of Agriculture a letter opposing the amendment offered by Senator Bruce. These letters from the Department of Agriculture I ask the reporter to insert in the record. (The two letters from the Department of Agriculture are here inserted in the record as follows:) Hon. CHARLES L. McNARY, Chairman Committee on Agriculture and Forestry, United States Senate, Washington, D. C. DEAR SENATOR: I have your memorandum of March 17, inclosing copy of H. R. 487 and requesting that I give consideration to this bill. The department considers this proposed amendment to the Federal food and drugs act a very desirable piece of legislation. We have consistently supported the measure since it was first proposed. The bill was originally drawn to correct a practice of slack filling which had become unusually prevalent during the demoralized trade conditions incident to the war. While the practice of slack filling is not to-day quite so extensive, perhaps, as it was several years ago, the department, in connection with its work of enforcing the food and drugs act, is continually encountering cases of deceptive packages which can not be reached under the present terms of the law. Consequently the consumer is defrauded and a very unwholesome competitive situation perpetrated. We have not infrequently received complaints from ethical manufacturers that they are finding it extremely difficult to compete with other concerns putting out products of the same type as their own in deceptive packages. trade is almost uniformly favorable to this legislation. I may say that we have advices from one leading manufacturer of food products whose representative appeared in opposition to the measure at the hearing of January 23, 1924, to the effect that that concern is now favorable to the bill. The I note that in passing the House the bill was amended so as to extend the period of grace during which no penalty will be imposed from six months to one year. This amendment is unobjectionable to this department. I sincerely hope that a favorable report on the measure by your committee will result in its prompt enactment by the Senate. Sincerely yours, R. W. DUNLAP, Acting Secretary. DEPARTMENT OF AGRICULTURE, Hon. CHARLES L. MCNARY, United States Senate. DEAR SENATOR MCNARY: The inclosed file personally submitted to Mr. P. D. Cronin of this department by a representative of your office in H. R. 487, has been duly considered by this department. The amendment introduced by Senator Bruce, if adopted, would change the verbiage of this portion of the bill to read, "or if it be in a container made, formed or shaped so as to evidence an intent to deceive or mislead the purchaser as to the quantity, quality, size, kind or origin of the food contained therein." The difficulty involved in the enforcement of any law which takes into account the intent of the proposed defendant is well recognized. Under the proposed amendment, a container may be thoroughly deceptive, but it would not be sufficient for the department to prove merely that it is deceptive. In addition to such proof, it would be imperative to show that the container was made, formed or shaped so as to evidence an intent in the mind of the proposed defendant to deceive or mislead. In many cases, this might be almost impossible because of the difficulty of showing just what is in the mind of any person. Certainly the adoption of this amendment to the bill in question would make it more difficult to enforce, and it would not be nearly so effective in the correction of the abuses which it is intended to prevent. It seems to us that if this bill is to be made really effective, the element of intent should be left out of consideration, and the wording be so drawn as simply to condemn deception without regard to whether that deception is intentional or otherwise. These comments are also applicable to the proposal made for amendment by the National Confectioners' Association. They make an additional proposal that products in containers of a display or decorative nature or for gifts be exempted. It is not apparent why these containers should be permitted to exhibit deceptive characteristics more than containers of the ordinary kind. Furthermore it would be very difficult indeed to determine when containers fell within these classes and when they did not. It is certain such provision would seriously weaken the provisions of the bill. The brief submitted by the Glass Container Association contains many inaccuracies. It is difficult to believe that since the bill is designed merely to cure deception, its effect would be of such serious disadvantage to the glass industry as indicated by this brief. We are very much in doubt that this industry is so extensively dependent for its existence upon the manufacture of deceptive containers as this brief would imply. The effect of the bill upon that industry as we see it would be merely to prohibit the use of containers which are definitely misleading and deceptive and the equities the industry may have to a continuation of this business are certainly not as great as those of the public to be protected against deception. The bill would not in any way prevent the continued sale of containers of artistic design and would in no wise discourage the initiative of manufacturers in building up a market for distinctive packages so long as these packages are not deceptive. The contention made that consumers are interested in quality and not in quantity is wholly fallacious, as is the contention that no deception exists in glass containers. The exhibits available are sufficient to show very definitely that deception does exist. The application of the bill would not as stated prohibit the manufacture of every style or kind of bottle except a round one with the shortest possible neck. The power it would place in the hands of the department would not be arbitrary in nature, but in bringing any case under the bill, the department would necessarily have to be fortified with the evidence of deception of a sufficiently convincing kind to go before a court and jury and prove its case beyond reasonable doubt, or at least by preponderance of the evidence. The points raised in the letter from McMonagle & Rogers are also covered by the brief of the Glass Container Association. It is not apparent to us why glass containers should be permitted to be misleading and deceptive, and we see no reason why the bill should be amended by an exemption of these containers. It is our understanding that the exhibits presented before the House Committee are still available. Additional exhibits, however, are being transmitted herewith. The bottle of raisin juice was taken from a recent import shipment. Very truly yours, R. W. DUNLAP, Acting Secretary. The CHAIRMAN. Senator Copeland, the committee would be glad to hear from you or anyone you may have here either opposing or favoring this legislation. Senator COPELAND. I will ask Judge Jennings to make a statement. STATEMENT OF I. G. JENNINGS, REPRESENTING THE GLASS CONTAINER ASSOCIATION, NEW YORK CITY The CHAIRMAN. Give your full name and whom you represent. Mr. JENNINGS. My name is I. G. Jennings. Representing the Glass Container Association, the glass container industry, and certain other users of glass containers. The CHAIRMAN. Are you here opposing this bill? Mr. JENNINGS. Yes, sir. Senator COPELAND. Judge Jennings has been very active in our city, Mr. Chairman, for many years. He was connected with the milk industry and had much to do with creating the high standard which we have in New York. He is qualified to speak on this subject. The CHAIRMAN. Very well, we will be glad to hear from you, Mr. Jennings. Mr. JENNINGS. My statement will be brief. The glass container industry is here, gentlemen, not so much in its own interest as that of a number of organized and a great many more unorganized users of glass containers. So far as our industry is concerned, when the order is given and the molds are made, we can make any shape and any practical size container with almost equal facility. It is the container in the hands of the packer or bottler, after it has passed from our hands and after the money has been paid to us for it, that will be mainly affected by this legislation. There are several good reasons why this amendment to the pure food and drugs act should not be made and if made why the glass container should be excepted from its operation. But first let me say that the glass-container industry, gentlemen, is not here questioning the good faith of those who are sponsoring the bill nor their desire or any desire that may exist in your committee to pass a law which on its face would seem to be for the public welfare. It is the administration of the law after it is passed, even perhaps in the hands of an entirely new administration of the Bureau of Chemistry that may give trouble. Many an inspector not overpaid and wishing to make good, and no matter what his instructions may be, is liable to hold up a container that in the end will be adjudged perfectly fair by his department or by the courts, but by that time the harm is done, business interrupted, and faith in the whole line of containers destroyed. As a matter of fact, there are no glass containers on the market now which could properly be held to deceive the public. There used to be a push-up bottle of foreign make containing champagne and vermouth which I have seen exhibited as a horrible example of how glass might deceive. But they are not on the market to-day. Certainly the flavoring-extract manufacturers use the panel bottle-but let anyone try to sell extracts in a round bottle and the American housewife would think she was getting medicine or poison. Then, again, nobody ever was deceived by such bottles; the push-up was obvious and so was the small capacity of the panel. There are many different designs of bottles, but that is the way many manufacturers of food products have in expressing their individuality, and many such bottles are of distinct trade-mark value, a type of business practice favored by the Government to stimulate the maintenance of quality and integrity of product. In interfering with this phase of the situation, the glass industry itself would be affected for there are hundreds of thousands of dollars worth of molds, which would have to be consigned to the junk heap, if individuality would be put in jeopardy by this law. Perhaps the greatest reason why this amendment should not pass, from the standpoint of the whole people, is that of constitutional policy. In every schoolhouse in the country, where government is taught and that is to-day in practically all of them, the standing joke is the ridiculous inconsistency existing between the Government departments of administration and some of the functions carried on by their bureaus. Why, for instance, is the Public Health Service one of the functions of the Treasury Department; why has the Bureau of Chemistry of the Department of Agriculture become known almost exclusively in some quarters as a police department? Well, it may be said, the administration of a pure food and drugs law is a worthy function of any department. But here is where a great danger lies in legislation. Given one function that is just a little inconsistent and then tack onto that by amendment something more of a collateral nature and you finally have something so entirely foreign to the original intent of the founders that it could never be recognized. And so the chemical function of the agricultural interests of this country is now diverted to a police function that clearly belongs to the Department of Commerce. Some time the farmers of America will ask embarrassing questions. And now as to the administration of the pure food and drug law itself. Whether a food or drug is pure is a matter of positive determination. Whether the amount of the product is 8 or 16 ounces as designated on the label is a matter of positive determination. But whether the form or shape of a container deceives is an entirely different matter to which there might be 110,000,000 different answers and the opinion of an inspector of a bureau of chemistry, interested in making a record for himself, might be the worst possible standard to judge by. Finally, if you must recommend this amendment, except the glass container. It don't deceive; anybody can see if it is slack filled; quantity as well as quality is visible. It passes all understanding why it should be included at all. The glass container is honest in any shape and style. For thousands of years, or as long as law and common sense have been synonymous, the rule has been that the purchaser must use his eyes. This is ingrained in American human nature. With the contents plainly marked on the label, is it not carrying paternalism a step too far to take away the right to manufacture or use a container that can properly express the individuality not only of the packer but of the product itself, and at the same time you can see exactly what is in it? Here are these bottles, gentlemen. I leave it to anybody. There is the real horrible example of a bottle that will deceive. Now, will anybody that has eyes be deceived by that? Here is another case of it. Purely synonymous with medicine and with the extract business. Now take this inkstand. That has ten times as much glass in it as would reasonably be used to hold that ink. And yet it does not deceive anybody. No one is deceived by a thing of that kind. The glass planinly shows the contents. The CHAIRMAN. Just a moment. I think we would have a better understanding of this if I might make a statement. This bill passed the House. It is an amendment to the pure food and drugs act passed in 1906. Let me read you the section it amends. It is very brief. The present law, the act of 1916 says, reading from page 4 under the subhead, "In the case of food:" 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 originally 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— And a lot of other drugs. Now that section is amended By striking out the period at the end of paragraph second, in the case of food, and inserting in lieu thereof a semicolon, and adding thereafter the following clause: "or if it be in a container made, formed, or shaped so as to deceive or mis |