Mr. TINCHER. Yes, twice. It speaks of making in section 3A (4), on page 3, "customers are supposed to make a rational comparison. Senator LAUSCHE. Now, another question, on page 4, line 12, it is stated:

Regulation under this section shall be promulgated by the Secretary of Health, Education, and Welfare, referred to hereinafter as the Secretary, with respect to any customer commodity which is a food, drug, device, or cosmetic as each such term is defined.

This language makes it mandatory for him to promulgate rules and regulations. Do you agree with me?

Mr. TINCHER. Yes, sir.

Mr. LAUSCHE. And that would place in the Secretary the judgment of what he thinks ought to be done; is that correct?

Mr. TINEHER. Yes, sir. It's obligatory, not permissive.
Senator LAUSCHE. Then on line 29, subparagraph (b):

The Federal Trade Commission, referred to herein as the Commission, with respect to any other customer commodity, such regulation adopted by the Secretary and by the Commission shall be uniform in content and application to the greatest practical extent as determined by consultation with the Secretary and Commission. Thus it appears that both of these Federal agencies would be directed to adopt regulations that would assist in carrying out the declared purpose of the bill as set forth in section 2.

Do you follow me?

Mr. TINCHER. Yes, sir.

Senator LAUSCHE. Do you see anything wrong in granting these agencies the discretionary power to adopt regulation?

Mr. TINCHER. Yes, I do.

Mr. LAUSCHE. All right. Explain it.

Mr. TINCHER. I was touching on this a minute ago. I have spent 7 years at the FTC. I know how they operate, I believe. The FTC is given a bill to enforce, it looks to the legislative history, the statements of the sponsor, to the testimony, to the purposes of the bill. In this case, if this bill passes, and I were at the FTC, I would have to assume because of the testimony and statements that I was under the duty to enforce the bill and eliminate confusion and I would very vigorously proceed to do everything I could to guarantee there would be no confusion.

I would have products from the same size box with the same number of ounces and I think that is all any reasonable lawyer or anybody else, agency, under this bill, can do.

Senator LAUSCHE. All right.

Now, let us see, we've got to page 2--I am going over to page 4, line 3

whenever the Secretary, as to any food, drug, device or cosmetic, or the Commission, as to any other customer commodity, determines that additional regulations are necessary to establish or preserve fair competition among competing products by enabling customers to make rational comparison with respect to price and other factors, or to prevent the deception of customers as to such product, the Secretary or the Commission, as the case may be, shall promulgate under this subject subsection with respect to that commodity regulation effective as to certain classification.

Is it your understanding that under the language which I just read, the Commission and the Secretary, if and when either or both determine that additional regulations were needed, other than the ones made mandatory in the first part of the bill, would have the discretionary power to adopt the regulation?

Mr. TINCHER. Certainly. Which is not needed, of course, with reference to deception, as mentioned. Existing law adequately covers deception.

The thrust of the discretionary powers and therefore the vast new undertakings would be with reference to rational comparison.

Now nobody in this room, nobody in this committee, nobody in the legal profession can tell you what rational comparison means for 190 million American shoppers under this bill.

Senator LAUSCHE. Did you say you were an employee or connected with the Federal Fair Trade Commission, at one time?

Mr. TINCHER. Yes, sir, from 1954 to 1961.

Senator LAUSCHE. How long were you on it?

Mr. TINCHER. Seven years.

Senator LAUSCHE. Were you a member of the Commission?

Mr. TINCHER. No, sir. I was Associate Director of the Bureau of Litigation at the conclusion.

Senator LAUSCHE. Do you see any danger in the trend that seems to be existent of the Government turning over to Government agencies the responsibility, limited only by the discretionary power of the official to adopt regulation that became tantamount to law?

Mr. TINCHER. Yes, sir. I see extremely grave dangers. I think we have to stop and look at where we are and how we got that way. We are the most productive and prosperous nation on earth under a certain type of free enterprise economy which has been unfeathered by regulation and restrictions such as this.

It is my sincere opinion that we start doing this sort of thing in the name of something we cannot even define legally, we are operating against that system and we can do nothing except try to end up toward a GI-type warehouse where everything is in certain size boxes and you don't have labeling or advertising.

That is not what has made the economy of this Nation. I saw such happy smiles on some faces. I would like to clear up something. When I mentioned this competitor of ours who is packaging a product in one-sixth of the space it takes, this is bad but, do you need this bill for that? No. We have written this fellow and told him, "Get this changed by the first week in May or we will turn you in to the Federal Trade Commission and the California and Pennsylvania State authorities."

We don't need to spend hundreds of millions of dollars to enforce this bill to get rid of what is a horribly deceptive practice. Existing law covers it and it will cover it and we will see that it does.

Senator LAUSCHE. Any further questions?

Senator HART. Yes.

To the point of how far Congress should go in writing a bill of particulars with respect to label design, size of print, adjectives, or turning that over to the FTC, I have certain views and Senator Lausche has certain views as to which is the better body to make the prudent judgment.

Five hundred and thirty-five or forty-five Members of Congress or the FTC. And on that point, is it your judgment that the labeling views with respect to wool and textile, which turned the specifications over to the agency, have damned the wool and textile industries?

Mr. TINCHER. No, they saved them. But those bills, not one of them has gone near as far as you are proposing. They do not require

standardization of what is in the product, they merely require that it

be labeled, et cetera.

Senator LAUSCHE. Anything further?

(No response.)

Senator LAUSCHE. That is all. Thank you very much.

Mrs. Brady, your testimony will be printed in the record, verbatim. I think all of the witnesses were told they should try and summarize their testimony, emphasizing the highlights and the point they want to make.

Mrs. BRADY. I will try to do so.

(The full statement follows:)

TESTIMONY ON THE TRUTH-IN-PACKAGING BILL, S. 985, GIVEN BY MILDRED EDIE BRADY, RESEARCH ASSOCIATE, CONSUMERS UNION, MOUNT VERNON, N.Y. During the 4 years that the problem of deceptive packaging has been under consideration by the Congress, there has been remarkably little discussion of the basic issue. Consumers asking for the legislation have said: "We can't compare prices." Industry spokesmen opposing the legislation have said all manner of things, but on this central issue what they have said comes out to little more than "You can, too." Packagers have discovered, since this legislation was introduced, that the American female possesses an astonishing ability to calculate. This heretofore unnoted phenomenon has won great plaudits from industry and has been the subject of some of Madison Avenue's most untrammeled prose. In full-page newspaper ads, the Scott Paper Co., for example, has hailed the American housewife as "The Original Computer." "*** a strange

change comes over a woman in the store," read the ad. "The soft glow in the eye is replaced by a steely financial glint; the graceful walk becomes a panther's stride among the bargains. A woman in a store is a mechanism, a prowling computer ***. Jungle trained, her bargain-hunter senses razor sharp for the sound of a dropping price ***"

None of these lady panthers, however, came to testify before any of the congressional hearings on packaging. The shoppers who did appear belonged to a lesser breed. They were fully aware, their testimony indicated, of the jungle aspects of their buying experiences, but they failed to undergo that metamorphosis so necessary to successful shopping in today's supermarket. They remained, alas, all too human. "We simply couldn't make price comparisons," they said. But opponents to packaging legislation, having provided the obvious answer to this repeated complaint-turn yourself into a panther and prowl with a computer-have exhibited little further interest in the subject.

The opponents to packaging legislation, as a matter of fact, seemed to be singularly disinterested in the marketplace itself, or in packaging practices as they are evidenced here. Aside from noting that there are 8,000 different items to choose from in the average supermarket and that an increasing percentage of these are new, the packagers have focused their attention on such matters as the remarkable achievements of American industry, the questionable ethics of certain consumer-minded officials and Senators, the dire consequences to creativity and freedom associated with interference in the market, and the contentment and happiness of consumers with things as they are.

There is, of course, nothing reprehensible in bringing up these matters for consideration. Creativity, freedom, and ethics have long been, and should continue to be, of concern to mankind and these large issue are, indeed, involved in the packaging problem. And as for the happiness and contentment of the Nation's citizens as consumers, the preservation of good faith in their day-by-day dealings with one another in the exchange of goods is precious indeed--much too precious to be hazarded for lesser goals or for private ends. But it is disappointing that the packagers have presented so little information about the more specific issue before us because they are, after all, the ones who have access to the full record of packaging practices.

The canners know, for example, just when, where, and to what extent the No. 2 (20 ounces) can has been supplanted by the No. 303 (16 ounces) can, which, in some cases, has been succeeded by the No. 300 (141⁄2 ounces) can. And it is the canners, too, who could tell us in detail what happened to the price per unit of weight as the quantity per can thus slid down. The consumer's ability to document the changes taking place within the 8,000 marketed items is circumscribed, to say the least, and is, of necessity, limited to the short

run.

Consumers are able to observe isolated instances such as, for example, that Betty Crocker Instant Mashed Potatoes, which came in a 7.2-ounce package and cost 37 cents around 1961 still costs 37 to 39 cents but now comes in a package containing only 6.5 ounces. But what is the full story? What has happened to competing brands?

Or take the case of Kraft Fudgies. In 1960 or thereabouts the contents of this bag of candy dropped from 15 to 12 ounces. The price stayed the same, 29 cents. By 1961 the weight of Fudgies had dropped again, this time to 10 ounces. The price stayed at 29 cents. Thus purchasers of that product were subjected to a 50-percent price increase in a matter of months. But there may be more to this story. Was Fudgies always a hungry (15 ounces), not an honest (16 ounces), pound? Had Kraft merchandisers, when they launched this brand, counted from the start on their customers, a good many of whom are probably children, not knowing about how many ounces are in a pound? Or was that 15-ounce package a first step down? Only Kraft could tell us what has taken place over what period of time in the price per unit of weight of their candy. Even the wide-flung resources of the Department of Labor's Bureau of Statistics cannot document the impact of this kind of quantity manipulation, which multiplied time and time again over wider and wider commodity groups is what has sent consumers to Congress with their complaint: "We cannot compare prices."

The opponents to this legislation, however, have preferred to examine, not the packages on the market, but the consumers who buy them. Consumer panels and surveys have popped up all over the place. The findings from these inquiries run a gamut from such simple and obvious observations as that some consumers have cut their fingers on the pop-top beer cans to a most astonishing discovery, this one claimed by Good Housekeeping magazine, that 95 percent of the housewives read the labels carefully when they are shopping for food. The food industry, itself, came up with the considerably less than astonishing discovery that when consumers were primed with manufacturers' arguments against the packaging changes, a good many agreed that changes were not necessary.

This particular survey of consumers, financed by the Grocery Manufacturers of America, does not flatter the audience for which it was intended. It measured nothing-not even the comparative persuasive power of the industry's propaganda, since none but manufacturers' views were presented. Although GMA's research hit a new low in such efforts, all of the industry-sponsored surveys and panels that CU has come across have studiously avoided any attempts to measure a consumer's ability to compare prices on today's market. Such a survey question would not be difficult to design. Taking cookies, for example, the question might look like this:

"Listed below are the prices and net weights for a variety of Nabisco and Sunshine cookies found on the shelves of a First National supermarket in Westchester County, N.Y., during the week of April 26, 1965. Will you please select the cookie that costs the least:

The interviewer would report the number who refused to try as well as timeclock those who did, while the survey analysis would check the accuracy of the answers. A weakness of this inquiry, it must be admitted, would be its failure to reflect fully the shopping experience because in the survey question the net weights are lined up neatly and clearly alongside the prices, while in reality net weights are practically never on the same side of the package as the price, and they are frequently very hard to find. One of the things the Scott Paper Co. forgot to mention in its account of lady into panther was the change in eyesight as well as stride. A prowling computer must be lynx eyed to be programed for today's supermarket.

I have here two samples of a cookie package that was sent in a few weeks ago by a reader of Consumer Reports. Perhaps the members of the committe might like to test their own ability to compare the prices. The cost of this bag of cookies was, as you will note, 49 cents. So here's the question. How much did these particular cookies cost per pound and are they expensive or inexpensive as compared with the cookies listed above?

Opponents to this legislation have made the point time and again that consumers are interested in aspects of a product other than price-in convenience, attractiveness, reliability, and quality. That is certainly true. And consumers face serious problems in these areas. Products change behind their brand names and different brands often identify the same product, selling under its various disguises at different prices. But this legislation does not penetrate into these subtler evasions of price competition. It is concerned simply with a consumer's ability to compare prices at the retail level. It is concerned with an outbreak of commercial frenzy that threatens to undermine the very taproot of the distribution system of the free enterprise economy. In his discussion of "Competition as a Dynamic Process," America's leading economist, John Maurice Clark, writes: "The efficiency of American retail distribution begins with openly marked prices (instead of the old-fashioned cabalistic symbols) on identifiable products. This assures the customer the same price as other customers in the same store. It does not assure equal prices in different stores, but it facilitates the kind of customer comparison that keeps differentials between stores within bounds."

But a customer is no longer assured that he will pay the same price for the same product in the same store as that paid by other customers. In place of those old-fashioned cabalistic symbols, quantity manipulations plus cabalistic price declarations now penalize the trusting buyer. On the shelves of some supermarkets in the New York City area there appeared, a week or so ago, two sizes of the instant coffee, Nescafe-a 6- and a 7-ounce size. Each was priced at $1.03. Each bore a 10 cents off label. Here were two different prices for the same product. And no stockboy could be blamed. In addition to the cents-off label,

the 7-ounce size bore this additional legend: "Buy 6 ounces, get 7." Readers of Consumer Reports have reported instances of finding as many as three different prices for the same item on the same shelf at the same time.

At an A. & P. supermarket in Westchester, on May 1, 1965, the liquid detergent, Mr. Clean, was available at prices calculated on a per-unit-of-weight basis for: 41.6 cents; 39.5 cents; 28 cents; and 26.88 cents a pint. Both the highest and lowest prices were stamped on the 15-ounce, hungry-pint size. About half the samples on the shelf bore a 12 cents off label. The other half did not. Some customers in that store either had paid, or would pay, 40 percent more for the same product than had other customers.

Along with the cents-off claims goes a label warranty reading: "Price as marked is so many cents off regular price." That guarantee is doubly deceptive. What is the regular price, would you say, of Mr. Clean? What is the regular price of any product? That is no easy question, as the Federal Trade Commission learned sometime ago in its attempts to rid certain segments of the retail market of the deceptive practice known as the phony list price. And if regular price eludes definition, what then are branders promising with their cents-off declarations? But even if a regular price could be defined, the cents-off guarantee is still deceptive. Except where the price of a product has been dictated by a brander availing himself of the price-fixing privileges granted by that retrogressive legislation misnamed "fair trade," attempts of manufacturers to control retail prices violate Federal law. The branders making these cents-off claims are well aware that they are promising what they cannot deliver. CU has received many, many letters reporting prices charged that were inconsistent with cents-off label claims.