National Small Business Association_. Neighborhood Service Councils of Hotel, Motel & Club Employees- 509 827 FAIR PACKAGING AND LABELING WEDNESDAY, APRIL 28, 1965 U.S. SENATE, COMMITTEE ON COMMERCE, Washington, D.C. The committee met at 10:27 a.m., in room 5110, New Senate Office Building, the Honorable Warren G. Magnuson (chairman of the committee) presiding. The CHAIRMAN. The committee will come to order. The committee today opens hearing on S. 985, Senator Hart's proposed "Fair Packaging and Labeling Act," an act whose stated purpose is to prevent "the use of unfair or deceptive methods of packaging or labeling of *** consumer commodities in interstate and foreign commerce." Once again this committee is engaged in its historic role as the arbiter of fair commercial practice, a role that has led in the past to the enactment of major legislative pillars of consumer protection: The Wool Products Labeling Act, the Fur Products Labeling Act, the Flammable Fabrics Act, the Textile Fiber Products Identification Act, and the Hazardous Substances Act. The legislation before us reflects the marketing revolution which, in the past two decades, has transformed America's consumer marketplace. For most American shoppers, the supermarket has replaced the corner grocer. The package has replaced the individual as a salesman. This change, to be sure, has brought a wide range of commodities at competitive prices to the consumer. The supermarket shelves are stocked with a range of products packed in multiple ways unimaginable in the corner grocery of pre-World War II. The competition among producers "to be seen on the shelves" in order to sell their products has made shopping an even more complex task for housewives. S. 985 would require the Federal Food and Drug Administration and the Federal Trade Commission to enact certain "mandatory" regulations. They would require that the "net quantity of contents" be stated on the front panel of consumer packages and would prescribe standards to assure the prominence of such statements on the package. Qualifying words such as giant half-pint would be prohibited, along with cents-off promotions by manufacturers and label illustrations likely to deceive. S. 985 would also give the Administrator of the Food and Drug Administration and the Chairman of the Federal Trade Commission Staff counsel assigned to this hearing: Michael Pertschuk. discretionary powers to promulgate regulations to mainain fair competition, assure rational comparison between competing products, and prevent "the deception of consumers." These might include the establishment of reasonable sizes, weights, or quantities for competing products. They could require the disclosure of ingredients and prohibit the use of package shapes or sizes which are likely to deceive. The bill provides for full hearings before the promulgation of regu lations and assures producers of a voice in the setting of standards. These are essentially the main purposes and objectives of the bill. (The bill follows:) [S. 985, 89th Cong., 1st sess.] A BILL To regulate interstate and foreign commerce by preventing the use of unfair or deceptive methods of packaging or labeling of certain consumer commodities distributed in such commerce, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Fair Packaging and Labeling Act". PROHIBITION OF UNFAIR AND DECEPTIVE PACKAGING AND LABELING SEC. 2. (a) It shall be unlawful for any person engaged in the packaging or labeling of any consumer commodity (as defined by this Act) for distribution in commerce, or for any person (other than a common carrier for hire, a contract carrier for hire, or a freight forwarder for hire) engaged in the distibution in commerce of any packaged or labeled consumer commodity, to distribute or to cause to be distributed in commerce any such commodity if such commodity is contained in a package, or if there is affixed to that commodity a label, which does not conform to regulations promulgated pursuant to this Act. (b) The prohibition contained in subsection (a) shall not apply to persons engaged in business as wholesale or retail distributors of consumer commodities except to the extent that such persons (1) are engaged in the packaging or labeling of such commodities, or (2) prescribe or specify by any means the manner in which such commodities are packaged or labeled. REGULATIONS TO BE PROMULGATED SEC. 3. (a) As soon as practicable after the effective date of this Act, regula tions shall be promulgated to (1) require the net quantity of contents (in terms of weight, measure, or count, or any combination thereof) of consumer commodities to be stated upon the front panel of packages containing such commodities, and upon any labels affixed to such commodities; (2) establish minimum standards with respect to the prominence of statements of the net quantity of contents (including minimum standards as to the type size and face in which such statements shall be made) appearing upon packages containing any consumer commodity and upon labels affixed to any such commodity; (3) prohibit the addition to such statements of net quantity of contents of any qualifying words or phrases; (4) specify such exceptions to the foregoing requirements as the promulgating authority may determine to be required by the nature, form, or quantity of particular consumer commodities, or by the customary mode of display of any particular consumer commodity for retail sale, except that no excep‐ tion may be made if that exception would deprive consumers of reasonable opportunity to make rational comparisons between or among competing products; (5) prohibit the placement upon any package containing such commodity, or upon any label affixed to such commodity, of any printed matter stating or representing by implication that such commodity is offered for retail sale at a price lower than the ordinary and customary retail sale price. or that a retail sale price advantage is accorded to retail purchasers thereof by reason of the size of that package or the quantity of its contents, except that no regulation promulgated under this section shall prevent any person while engaged at any time in the sale of any consumer commodity at retail to ultimate purchasers thereof from placing upon any such commodity, or upon any package containing that commodity, any marking pertaining to the retail sale price of that commodity; and (6) prevent the placement, upon any package in which such commodity is distributed for retail sale, of any illustration or pictorial matter which is likely to deceive retail purchasers in any material respect as to the contents of that package. (b) (1) Regulations under this section shall be promulgated by (A) the Secretary of Health, Education, and Welfare (referred to hereinafter as the "Secretary"), with respect to any consumer commodity which is a food, drug, device, or cosmetic, as each such item is defined by section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321); and (B) the Federal Trade Commission (referred to hereinafter as the "Commission") with respect to any other consumer commodity. (2) Such regulations adopted by the Secretary and by the Commission shall be uniform in content and application to the greatest practicable extent, as determined by consultation between the Secretary and the Commission. (c) Whenever the Secretary (as to any food, drug, device, or cosmetic), or the Commission (as to any other consumer commodity) determines that additional regulations are necessary to establish or preserve fair competition between or among competing products by enabling consumers to make rational comparison with respect to price and other factors, or to prevent the deception of consumers as to such product, the Secretary or the Commission, as the case may be, shall promulgate under this subsection with respect to that commodity regulations effective to (1) establish reasonable weights or quantities, or fractions or multiples thereof, in which that commodity shall be distributed for retail sale, except that no such regulation may be inconsistent with standards prescribed by the Secretary of Commerce before the effective date of this Act with regard to the sizes of containers used for the retail sale of any commodity, and no weights and measures shall be established in amounts of less than two ounces; (2) prevent the distribution of that commodity for retail sale in packages of sizes, shapes, or dimensional proportions which are likely to deceive retail purchasers in any material respect as to the net quantity of the contents thereof (in terms of weight, measure, or count), except that where reasonable weights and measures have been established pursuant to the provisions of paragraph (1) of this subsection such regulations may not proscribe the use of package shapes which have been designed to exploit the unique advantages of any material for use in the production of packages of distinctive appearance; (3) establish and define standards of designations of size (other than statements of net quantity of contents) which may be used to characterize quantitatively the contents of packages containing that commodity; (4) establish and define the net quantity of any commodity (in terms of weight, measure, or count) which shall constitute a serving, if that commodity is distributed to retail purchasers in a package or with a label which bears a representation as to the number of servings provided by the net quantity of contents contained in that package or to which that label is affixed; (5) establish and define standards for the quantitative designation of the contents of packages containing any consumer commodity of a kind the net quantity of contents of which cannot meaningfully be designated in terms of weight, measure, or count; and (6) require (consistent with requirements imposed by or pursuant to the Federal Food, Drug, and Cosmetic Act, as amended) that sufficient information with respect to the ingredients and composition of any consumer commodity (other than information concerning proprietary trade secrets) be placed in a prominent position upon packages containing that commodity and upon labels affixed thereto. PROCEDURE FOR PROMULGATION OF REGULATIONS SEC. 4. (a) Before promulgating any proposed regulation under section 3 with respect to any consumer commodity, the Secretary or the Commission, as the case may be, shall (1) consult with other agencies of the Government having |