customer needs which are not adequately met by prevailing sizes and intensive competition is directed toward producing package design and labeling which is esthetically appealing. Consumer acceptance of this practice is now well established. The proposed legislation would limit private initiative and competition in packaging by standardization of many important aspects of packaging and labeling. The businessman would be less able to package his product in the most salable manner, and the consumer would be less able to secure desired changes in packaging. No longer would industry be free to change its packaging in response to the dictates of economics or the demands of the consumer, without prior resort to the administrative agency for a formal change in the regulations. The question which must be asked is whether this obvious stagnation and inhibition of proved methods of packaging of consumer commodities is necessary to protect the consumer from false and deceptive labeling and packaging practices which are not presently amenable to adequate control under existing law. The National Association of Margarine Manufacturers believes that this question must be answered in the negative. The practices sought to be controlled by S. 985 are presently subject to adequate, and, in some instances, more encompassing, existing legislation. The Federal Food, Drug, and Cosmetic Act prohibits the misbranding of those commodities subject to its provisions (21 U.S.C. 301(b)). Section 403 provides that a food is misbranded if, among other things, its labeling is false or misleading in any particular; it is sold under the name of another food; its container is so made, formed, or filled as to be misleading; or the package fails to identify its origin or quantity in terms of weight, measure, or numerical count. Also, section 402(b)(1) of the act prohibits economic adulteration of food products through devices which lead the consumer to believe that the product is better than it, in fact, is. Similar provisions respecting the misbranding of drugs, devices, and cosmetics are contained in sections 502 and 602, respectively. In addition, the Secretary of the Department of Health, Education, and Welfare is empowered by 21 U.S.C. 401 to establish standards of identity, quality. and/or reasonable standards of fill of containers whenever he determines that honesty and fair dealing in the interest of consumers will thereby be promoted. The Federal Trade Commission Act complements the Federal Food, Drug, and Cosmetic Act by providing, in sections 12 and 13, that the dissemination of any false advertisement for the purpose of inducing the purchase in commerce of food, drugs, devices, and cosmetics shall be an unfair or deceptive act or practice within the meaning of section 5. The foregoing provisions of existing law outline in broad terms substantive bulwarks against deceptive packaging and labeling practices with respect to foods. The broad, sweeping condemnation of these statutes guards the consumer against present and future deceptive practices, and establishes an objective standard of commercial morality against which industry, the courts, and the responsible administrative agencies may measure particular commercial practices. Varia The evolutionary nature of commercial practices must be recognized. tions upon specific practices are constantly being developed. Often, a statute such as that proposed in S. 985, which attempts to control specific practices becomes ineffective and its purpose frustrated by variations from the particular practices specified in the statute. The courts and administrative agencies, guided by general standards established by the Congress, are peculiarly capable of coping with specific undesirable practices, although their capability is subject to improvement. One area of improvement, pioneered by the Federal Trade Commission, is the making available of administrative guidance to industry in a variety of forms. The Commission, for example, has established procedures for the issuance of industry guides, advisory opinions, and regulations to deal with specific practices in any industry. A comparison between the proposed legislation and existing law and procedures indicates clearly that each specific, alleged abuse sought to be reached administratively by the proposed legislation is generally amenable to control under standards of commercial conduct already established by statute. The association believes that American industry, as a whole, is cognizant of its obligation to the public to maintain forthright packaging and vending practices and that such cognizance is implemented by the knowledge that deceptive practices will result in a loss of consumer confidence and the imposition of established legal sanctions. Finally, it must be recognized that the proposed legislation would increase the workload of presently overburdened agencies without providing a proportional increase in personnel, facilities, or funds. Particularly with reference to the Food and Drug Administration is this result undesirable when the addition of economic regulatory responsibility may require a sacrifice of efforts directed toward safety in food, drugs, devices, and cosmetics. The association believes that any demonstrable need for additional control over undesirable packaging and labeling practices would best be met by a statement of congressional policy implemented by an appropriation of funds adequate to allow the administrative agencies more fully to enforce existing law, particularly through the development of additional methods whereby industry may seek guidance as to the requirements of the law. The National Association of Margarine Manufacturers therefore requests the committee to report unfavorably upon S. 985. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, Hon. WARREN G. MAGNUSON, Chairman, Committee on Commerce, DEAR MR. CHAIRMAN: This is in reply to your letter of May 18, 1965, with which you forwarded a package of Brach's milk chocolate peanut clusters for a determination of whether the packaging of this article violates the Federal Food, Drug, and Cosmetic Act. We agree that a few more pieces of candy could be put into the container of Brach's milk chocolate peanut clusters. The act contains a provision under which a food is deemed to be misbranded if its container is so made, formed, or filled as to be misleading. We have, however, found it very difficult to convince the courts that a food is misbranded under this provision so long as the package bears an accurate statement of the quantity of contents. In fact, we have lost every contested court case which involved charges only that the package was misleading. Some of the packages involved in these decisions were inherently more deceptive than the container you submitted, since there was more empty space and no transparent window through which the prospective purchaser could see that the package was not completely filled. On the basis of our experiences so far, we question whether we could succeed should we initiate legal actions against Brach's milk chocolate peanut clusters solely on charges that the containers are so formed or filled as to be misleading. We plan to continue our efforts to protect consumers against deceptive packaging practices, but believe that we must choose our cases involving more flagrant deception in order to make it more likely that we will obtain favorable court rulings in this enforcement area. We hope these comments will be helpful. If we can be of further service, please let us know. Sincerely yours, JOHN L. HARVEY, Deputy Commissioner. WASHINGTON, D.C., May 20, 1965. Hon. WARREN G. MAGNUSON, Senate Office Building, Washington, D.C.: We urge the inclusion of prepackaged meats under the truth-in-packaging law. The false labeling package is only a new version of the butcher's thumb on the scale. It is bad enough for the chainstores and meat companies and their feed lots to artificially depress the prices they pay to farmers for livestock to influence the market without trying to make even more money by deceiving people when they go into a store to buy the food. We know of one food chain which was selling ham in the small deceptive "convenience" package at $3.50 a pound, at another one of its stores ham was on "special" at 33 cents and 43 cents a pound. Better labels will definitely help. BLUE CARSTENSON, Executive Director, Senior Member Council, National Farmers Union. Hon. FRANK CHURCH, CALIFORNIA PACKING CORP., Senate Office Building, Washington, D.C.: DEAR SENATOR CHURCH: In reviewing the Fair Packaging and Labeling Act, S. 985, now pending before the full Senate Commerce Committee, we find in our judgment little difference in substance or approach from the bill rejected by the Judiciary Committee during the previous Congress. We feel that ample provisions and safeguards already surround the production and marketing of proeessed foods; further, that S. 985 is fundamentally wrong in assuming that the consumer is confused and deceived. We are sure that you are aware of California Packing Corp.'s interest in the State of Idaho, both from the production of seed and the canning of peas, corn, kraut, and green beans. These crops are packaged in various styles to stimulate and increase consumer acceptance. Style changes and packing practices sometimes involve changes in the specific gravity of the product, but again, departure does not intimate deliberate intent to confuse or deceive. For example, green beans are packed as cuts, whole, seasoned, or sliced. Canned tuna may be grated, chunk style, or solid pack. In each instance, the weights of these products vary, but the identical can size is maintained rather than multiplying the number of can sizes on the shelf to accommodate fractional weight differences in the product. Should we grant any governmental agency the ultimate authority to establish weights or quantities in which a commodity must be packed, would impose upon processor's restrictions as to size, shape, and dimension of container which they may use in the packing of their commodities. The marketplace should make the determinations, therein reflecting the consumer's demands, rather than having a bureaucracy decide what the consumer should have. S. 985 would even establish individual serving sizes. Food industry experience has shown it to be as difficult to standardize servings or portions as it would be to regulate tastes and appetites. In 1934 canners voluntarily adopted a "descriptive labeling program" which detailed all the objectively determinable characteristics important to consumers. These voluntary terms for labels go beyond existing legal requirements, and are set forth for each food item in the industry's labeling manual. Economic and technical arguments supporting the canning industries voluntary packaging and labeling program were fully explored last year by Senator Hart's subcommittee and led the Senator to comment that over the years the consumer's interest has been of real concern in the (canning) association's development program. Senator Hart's comments have led some to believe that the canning industry should not be concerned with this legislation; and that a so-called canners exemption meets the industry requirements. This is incorrect, for not only is the language vague and imprecise, but under its most favorable interpretation. it would mean only the can sizes presently recommended by the canning industry Commerce Department voluntary agreement could be used. Thus new products, innovations in packaging, etc., would be subject to all of the provisions of the bill. Do we really need more laws or more diligent enforcement of existing laws? This question was adequately answered by FTC Commissioner Everette MacIntire on January 22, 1963, before the Food, Drug, and Cosmetic Section of the New York Bar Association. "I think you will see more and more of our cases involving the question of what omissions in advertising and labeling are material enough and deceptive enough to require an affirmative disclosure of facts. Full implementation of this authority of the Commission to prevent deception by requiring affirmative disclosure may obviate the need for a multiplicity of labeling or packaging laws, or laws seeking to provide further protection to the public in the sale of particular commodities. The argument might be made that if the practice is deceptive, let the Commission correct it under present law. If no deception is involved, then it may be the practice is not of sufficient importance from the public interest standpoint to warrant its being given further attention." We strongly urge that you convey our position to members of the Senate Commerce Committee, and that the proponents of the bill demonstrate wherein the present law is inadequate to cope with deceptive problems. The National Canners Association will present testimony before the Commerce Committee, and we fully support the position taken by our association. Very truly yours, CLAYTON L. ALLAN, PETE OLESEN & ASSOCIATES, INC., U.S. Senator FRANK CHURCH, DEAR SENATOR CHURCH: We understand the Senate Commerce Committee will be giving consideration to the Hart packaging and labeling controls bill (S. 985) this coming week or in the very near future. We feel present packaging and labeling laws are adequate to protect the ultimate user of seeds. We see no need for adding to the present laws, especially as it might pertain to seeds. Seedsmen are much concerned that certain aspects of the Hart packaging and labeling controls bill (S. 985) would directly or indirectly affect the marketing and distribution of seed. Furthermore, as we view the proposals, they would give no additional protection or benefit to the user of seeds, whether he be a farmer or a homeowner. Therefore, we strongly urge your entering into the record our opposition to the Hart packaging and labeling controls bill (S. 985). Yours sincerely, Hon. FRANK CHURCH, U.S. Senate, Washington, D.C. PETE OLESEN, Executive Vice President. NATIONAL BISCUIT Co., Pocatello, Idaho, April 29, 1965. DEAR SENATOR: I am writing to you to express my opposition to the proposed Hart packaging and labeling bill (S. 985). The Food and Drug Administration and the Federal Trade Commission have repeatedly demonstrated that they have adequate powers to protect the consumer from all abuses. Further Government regulation of production and distribution would be potentially harmful in that it could well disguise the real purpose of those who believe in total regimentation by the Government. I cannot accept that central authorities should decide what the consumer should eat, what the portions should be, or what shape or size the package should be. Freedom of choice should not be limited. Despite the fact that people have been told that they are in trouble and danger from the big, bad manufacturers, the White House Consumer Conferences have failed to show any insistent consumer dissatisfcation. The consumer has, and wants, a wide choice in amounts and types of products and he gets real value. The consumer effectively regulates the seller. No one dares displease him for he buys intelligently and is completely aware of the difference between poor and good quality. No manufacturer can remain in business by continuing to produce the wrong product or package and no Government agency can do a better regulatory job than the consumer. If this were not enough, costs would rise and quality standards would have a ceiling since there would be no incentive for improvement. Sincerely yours, S. R. CONRAD, Manager. LAMB-WESTON, INC., Portland, Oreg., May 5, 1965. Hon. FRANK CHURCHI, U.S. Senate, Washington, D.C. SIR: We operate frozen-food plants in Oregon, Idaho, and Maine with a total production of nearly 200 million pounds which are marketed throughout the United States. It is our considered opinion that the Hart packaging bill now being considered will create chaos in the food, drug, and packaged goods industries and will adversely affect many heavy industries engaged in producing or fabricating packaging materials. Our analysis of the bill is as follows: 1. A needless bill: In some respects the bill merely duplicates provisions in existing law. The Chairman of both the Federal Trade Commission and the Food and Drug Administration publicly testified their agencies already possess power to prevent false or misleading labeling and packaging, where it occurs. 2. An extreme bill: Other provisions of the bill go far beyond existing law by authorizing intensive Government control of package sizes and shapes without regard to deception, and prohibiting "cents off" label promotions altogether. 3. A consumer boomerang: For the consumer, the bill will tend to increase rather than decrease the prices of market-basket goods. Rigid regulation of package sizes, shapes, and volumes will slow down packaging progress, require heavier capital outlays in machinery and equipment, and raise prices at the retail level. On canned foods a requirement of net weights in even pounds or half pounds would cause incredible confusion and expense because of the difference in density of products which are now packed in a single size. In reality, the bill is a package standardization bill which will limit the housewife's freedom and range of choices and impair her ability to choose real values. 4. A smear industry bill: Modern packaging is held up to ridicule and the image of the consumer goods industry is slurred by intemperate charges of deliberate deception of the consumer. We ask that you vigorously oppose the Hart packaging bill. Yours very truly, E. J. WATSON, Vice President. H. P. CANNON & SON, INC., Senator JAMES B. PEARSON, Senate Office Building, Washington, D.C. DEAR SENATOR PEARSON: I was very happy to get your letter suggesting that you would be kind enough to incorporate any statement I might have with regard to the truth-in-packaging bill in the record. May I ask that this letter be submitted for the record. I am strongly endorsing the testimony that will be presented on May 4 by Milan D. Smith, executive vice president of the National Canners Association, Washington, D.C. This testimony fully presents the industry's position with regard to this particular bill known as the Hart bill. If you could do this, it would be greatly appreciated. Yours very sincerely, HENRY P. CANNON II, President. CALIFORNIA PACKING CORP., Hon. CLIFFORD P. CASE, DEAR SENATOR CASE: We are writing concerning the Fair Packaging and Labeling Act, S. 985, now pending before the full Senate Commerce Committee. This legislation does not vary in substance from the bill rejected by the Judiciary Committee during the previous Congress. There are already ample safeguards for the production and marketing of processed foods. S. 985 is wrong in assuming that the consumer is confused and deceived. Our plant here in Swedesboro packs tomatoes and tomato products, asparagus, juice drinks, stewed prunes, prune juice, and clams. Competition in the market for these food items is intense. These items are packed in different sized containers, not for the purpose of deceiving the consumer, but rather to increase consumer acceptance. To give any governmental agency the final authority to establish weights or quantities in which a product is to be packed will impose limiting restrictions on a processor. The marketplace will give adequate determination of this. We are sure you have been aware of the efforts that have been extended this past year in New Jersey to improve agriculture and its related businesses. To expand our markets we need aggressive imagination, not restrictions, as will result from S. 985. We now have adequate laws to protect the consumer from misleading practices. |