STATEMENT OF NATIONAL PLANT FOOD INSTITUTE

The National Plant Food Institute is a voluntary, nonprofit trade association having as members about 175 companies, varying from small to very large, who manufacture and sell fertilizers and fertilizer materials to farmers in the United States. The institute represents, volumewise, approximately three-fourths of the fertilizer industry in this country.

The National Plant Food Institute requests that fertilizers and ferilizer materials be specifically exempted from the provisions of S. 985, by amending the bill in line with the amendment suggested in appendix A, or, as an alternative, by including in the committee report language to show a specific intent that such materials not be included.

We believe that the exemption of fertilizers and fertilizer materials from S. 985 is justified because the labeling, sale, and distribution of these materials are regulated strictly by the various States. Forty-eight States presently have such laws. The other two States, Alaska, and Hawaii, are now considering, and are expected to enact shortly, comparable fertilizer laws for their States.

We question whether it is the intent of the sponsors that fertilizers or fertilizer materials be included in the bill, and it is questionable whether the definition of the term "consumer commodity" as defined in section 8(2) would be construed to include such materials. However, it is possible that the term might be construed to include some specialty fertilizers which are for garden or household use. Accordingly, we respectfully request that this possible ambiguity be removed by amendment or legislative history.

To a large extent the State laws follow the provisions of the uniform State fertilizer bill drafted and sponsored by the Association of American Fertilizer Control Officials. A copy is offered for the record.

With respect to labeling of fertilizers, this model bill now adopted by 35 States requires that

"Any commercial fertilizer distributed in this State in containers shall have placed on or affixed to the container a label setting forth in clearly legible and conspicuous form the information required by items (1), (2), (3), and (4) of paragraphs (a) of section 4.1

"If distributed in bulk, a written or printed statement of the information required by items (1), (2), (3), and (4), of paragraph (a) of section 4 shall accompany delivery and be supplied to the purchaser at time of delivery.

"A commercial fertilizer formulated according to specifications which are furnished by a consumer prior to mixing shall be labeled to show the net weight, guaranteed analysis, and the name and address of the distributor."

If S. 985 were intended to apply to any fertilizers, it undoubtedly would be the so-called "specialty" fertilizers for home or garden use. The labeling, sale. and use of these products are regulated under the various State laws. In order to assure a uniform. but effective, labeling pattern for these products, the Association of American Fertilizer Control Officials has evolved over the past 2 years a national format for specialty fertilizers. A copy is offered for the record. This format, now approved by 45 States, provides a detailed and comprehensive labeling pattern for specialty fertilizers.

For many years, the State fertilizer control officials have sponsored and maintained the Association of American Fertilizer Control Officials. This association has an active program devoted to the development of uniform State laws and effective regulatory and enforcement policies relating to fertilizers. A statement relating to the nature of that organization, the pattern of State laws and regulations pertaining to fertilizers, and the role of the States in the regulation of fertilizers is offered for the record.

The above facts demonstrate that the labeling, sale, and distribution of fertilizers are now fully and effectively regulated by the various States. Any regulation pursuant to the provisions of S. 985 would only duplicate this present regulation. Any additional regulation is unnecessary. Accordingly, we respectfully

1 The information required by items 1-4, par. (a), of sec. 4 is:

(1) The net weight.

(2) The brand and grade.

(3) The guaranteed analysis.

(4) The name and address of the registrant.

2 Official Publication No. 18, 1964-65, Association of American Fertilizer Control Officials.

request that fertilizers be exempt from the bill by amendment or inclusion in the committee report of legislative history evidencing an intent to exclude such products.

Respectfully submitted.

PAUL T. TRUITT, President.

APPENDIX A

PROPOSED AMENDMENT TO S. 985

Exempt fertilizers and fertilizer materials by adding to section 8 the following new subsection (E):

"(E) Fertilizers and fertilizer materials."

MODEL LABEL FORMAT, SPECIALTY FERTILIZER

The following information, if not appearing on the face or display side in a readable and conspicuous form, shall occupy at least the upper third of a side of the container.

Line No.

1 Net weight.

2 (a) Brand name.

(b) Grade.

3 Guaranteed anaylsis:

4

5

6

7

8

10

11

percent nitrate nitrogen.1

percent water insoluble nitrogen.2

Available phosphoric acid (P2Os)

Soluble potash (KO). ---- percent.

-- percent.

Additional plant nutrients, if claimed, and in order and with minimum percentage as in proposed regulation by the AAFCO. (See attached.)

(Approved and issued by the AAFCO Speciality Fertilizer Committee in the interest of uniformity as a guide. NOTE.-This adheres to the speciality fertilizer label approved by 45 States.)

1. No fertilizer label shall bear a statement that connotes or infers the presence of a slowly available plant nutrient, unless the statement specifically indentifies the nutrient or nutrients.

2. When a fertilizer label infers or connotes that the nitrogen is slowly available through use of organic, organic nitrogen, ureaform, long lasting or similar terms, the guaranteed analysis must indicate the percentage of water insoluble nitrogen in the material.

3. To supplement 2, it should be established that if a label states the amount of organic nitrogen present in a phrase, such as "25 percent of the nitrogen from ureaformaldehyde," then the water insoluble nitrogen guarantee must be not less than 60 percent of the nitrogen so designated. Example: 10-6-4 Rose Food.

25 percent of nitrogen is organic.

10 (total N) x 0.25 (percent N claimed as organic) x 0.60 (Average insolubility in H2O of organic nitrogen sources)=1.5 percent WIN. 4. When the water insoluble nitrogen is less than 15 percent of the total nitrogen, the label shall bear no references to any designations, such as stated in 2. 5. The term "coated-slow release fertilizer," or "coated-slow release" be accepted as descriptive of products, such as that recently introduced by ADM.

6. Further, the above phrases 5 be allowed for any products that can show a testing program substantiating the claim. (Testing under the guidance of experimental station personnel, or a recognized reputable researcher, etc.) Water

1 If claimed or required.

2 If claimed or the statement "organic" or "slow-acting nitrogen" is used on the label. The term "organic" is discouraged.

insoluble nitrogen must be guaranteed at the 15 percent of total nitrogen level, as in organic materials.

7. That AOAC method 2.047 be used initially to substantiate the fact that "coated-slow release" materials are present. The determination need only be modified by elimination of sample grinding during preparation. When the AOAC committee, working on this problem, comes up with a more specific method it will, of course, be substituted.

PROPOSED AAFCO REGULATION

(For adoption under State fertilizer laws)

Additional plant nutrients, besides nitrogen, phosphorus, and potassium, when mentioned or claimed on the label or container shall be registered and shall be guaranteed. Guarantees shall be made on the elemental basis. Sources of the elements guaranteed shall be shown on the application for registration. When claims for such nutrients are made on the label, container, or application for registration, the minimum percentages which will be accepted for registration are as follows:

Guarantee or claims for the above-listed additional plant nutrients are the only ones which will be accepted. Proposed labels and directions for use of the fertilizer shall be furnished with the application for registration upon request. Warning or caution statements are required on the label for any product which contains 0.03 percent or more of boron in the water-soluble form or 0.001 percent or more of molybdenum. Any of the above-listed elements which are guaranteed shall appear in the order listed, immediately following guarantees for the primary nutrients, nitrogen, phosphorus, and potassium.

STATEMENT BY THE AMERICAN RETAIL FEDERATION BY DOUGLAS WHITLOCK II, DIRECTOR, FEDERAL RELATIONS

The American Retail Federation respectfully submits the following comments in reference to S. 985 for inclusion in the proceedings of the Committee on Commerce.

The American Retail Federation is made up of 45 statewide retail associations and 31 national retail trade organizations representing, through their membership, hundreds of thousands of retail stores of all sizes throughout the United States. The offices of the federation are at 1616 H Street NW., Washington, D.C. It has been reliably estimated that in 1964 approximately two-thirds of the tangible gross national product of the Nation reached the Nation's consumers across the counters of American retail stores. No field of business is more intensely competitive. Probably no other field of private enterprise includes as many family-owned and family-operated businesses.

No employer other than government employs as many people in the United States as do retailers. Since everyone, regardless of his employment is also a consumer, retailing has a dual and particular concern for the Nation's consumers, and an unusual opportunity to know the interests and objectives of

consumers.

In recognition of its responsibilities in the respect, the American Retail Federation has adopted an official statement of policy on the subject of Federal regu lation of packaging and labeling, which declares as follows:

"The American Retail Federation endorses the principle that consumer goods should be honestly and understandably labeled and properly packaged. However, it is opposed to all further extension of Federal authority which would unnecessarily reduce and restrict the originality and improvement of consumer products through Federal control of labeling and packaging and add considerably

to the cost to the consumer. In view of the broad Federal and State authority already existing in the area of labeling and packaging the American Retail Federation contends that, beyond regulations for safety, purity, and disclosure, the incentives of the marketplace will continue to be the consumer's best protection."

We do not propose in this submission to discuss the philosophy of S. 985, or to explore the very complex means by which vigorous competition ably serves the varying needs of consumers. We do not doubt that there are some unclear and deceptive packages now on the market, and we do not quarrel with the proposition that some Federal regulation of the production and presentation of consumer goods has in the past proved necessary in the public interest.

Our presentation will be limited to two broad subjects. First, we believe that this bill, if enacted in its present form, would have consequences which the Congress would not intend or wish it to have. Second, a method is suggested whereby at least a substantial part of these difficulties could be resolved or reduced.

We would like to express our appreciation to the sponsors of this bill for their recognition in section 2(b) that retailers are not primarily responsible for and cannot control the vast majority of consumer goods. America's retailers are, the purchasing agents for the American consumer. The retailer can only offer to his customers what others produce for the market. He shops for these things with much the same standards and objectives as his consumers. His primary means of influencing what is produced, and how it is presented to the public, is by exercising his decision to buy or not to buy the available items; just as the customers' preferences ultimately control both the retailer and the producer.

S. 985 therefore does not presume marketing influences which the average retailer simply cannot exercise, nor impose policing responsibilities on the retailer. We therefore submit that 2(b) is an essential and praiseworthy element of any legislation on this subject.

However, despite 2(b), the bill in its present form, would impose direct regulation upon many retailers. It would affect so-called private label goods, produced or packaged expressly for retailers, in the same manner as it would affect the manufacturers' goods distributed under their own labels. In increasing numbers, small retailers are meeting their larger competitors by offering their own private label products, either through custom suppliers or through buying office or cooperative buying programs. To the extent that this bill creates at the level of the retailer, administrative, legal, or liability costs with regards to consumer goods, it might well result in higher retail prices on goods offered by retailers. This bill could also eliminate or reduce the effectiveness of many of the consumer -cost savings now possible through private brand retailer programs, particularly as far as smaller retailers are concerned.

There are many other activities of retailers, where the retailer becomes the packager and labeler of consumer goods. For example, food products of almost -every kind have long been packaged and labeled by retailers. Bulk delivery and repackaging produces sizable savings to consumers from food chains to the -corner grocery store. In addition to cost advantages, these practices also improve cleanliness, reduce spoilage and theft, and add convenience for the shopper. They can reflect purely local market conditions, as suggested by the differences in typical package size from communities of predominantly adult shopping areas to those with many large families.

"Packaging to a price" is an important retail practice. It serves as a meaningful service to both consumers and producers. For example, if labor or material costs increase beyond a practical point for a certain commodity, experience has taught the retailer that customers would rather purchase a 10-cent package of goods even though it may have one or two fewer units in it than pay 11 cents for the original quantity. Further, this price packaging often provides a significant discipline against price increase. Whether or not the retailer directly controls the packaging or labeling of the goods he sells, the ́form, size, and content of the package will surely have a material effect upon how well the customer will receive it, and how well it serves her wishes. We also believe that honest competition in packaging and labeling is a healthy, productive, and entirely legitimate part of the marketplace. Reusable containers often provide a very real value to the customer. The volume production and distribution which results can put attractive and useful objects in :the hands of many who could not otherwise afford them, and make them available with little or no added cost. If the ability of producers or packagers to in

novate in this area is curtailer or disadvantaged by stringent or unclear regulation, the effect will undoubtedly be felt by consumer, producer, supplier, and retailer alike.

We are concerned that the broad grant of regulatory authority which this bill seems to provide could have some of these adverse results. We feel sure the bill would affect many of the foregoing and other activities of retailer which, we suspect, the sponsors of the bill would not have expected or necessarily intended. We believe that facet of the bill deserves somewhat greater attention than it seems to have received to date in the testimony submitted in reference to S. 985 and its predecessors.

The American Retail Federation hereby extends to the committee its full cooperation and assistance in further exploration of this important aspect of the bill.

Our major concern, however, is the lack of clarity regarding the specific application of the bill in many areas of merchandise. The assortment of consumer goods changes, and usually increases, literally every day.

Many widely used products and packages in today's home were totally unknown and unimagined in their present form just a few years ago. Vast quantities of scientific and productive effort and knowledge are involved in the development and improvement of each category of goods. Retailers know that broad generalizations in dealing with this variety and change simply will not work. The present-day authority of the Food and Drug Administration and the Federal Trade Commission in the production and distribution of consumer goods has increased inherently with the variety and diversification of those goods. Opponents of S. 985 have frequently contended that the bill would add nothing significant to the powers of those agencies to prevent deception or misrepresentation, but that the resulting procedural requirements would unduly burden commerce and stifle ingenuity. Proponents claim the added power and procedures are necessary. It seems to us that many of these apparent conflicts could be resolved-or at least more meaningfully evaluated-if the definitions of the bill were made more specific.

It would appear that by far the greatest number of products likely to fall within the scope of S. 985 would be defined in the bill as "other consumer commodities." There seems to us to be considerable justification for concern over the yet unborn consumer commodities which might be consumed or expended in household use and for which power would be granted to two regulatory agencies to establish reasonable weights or quantities in which they are to be distributed. We wonder whether a small manufacturer seeking a larger place in a competitive market would be able to relinquish the flexibility advantage his size now provides over his better financed competitor, and still hope to compete successfully despite the burdens and delays inherent in this nascent power to regulate whatever his ingenuity contrives.

The power to prevent deception is now abundantly present in both the FTC and the FDA. The power to preclude products may be present in S. 985. We submit that consumers, and indeed all elements of the productive and distributive facilities of the Nation, need a better definition of what this bill would do, what it would affect, and in what respects it would enhance the constructive ability of these agencies to protect without confining the essential ingenuity of the marketing process.

Certainly, the American Retail Federation is primarily charged with representation of the interests of its constituent retailers. In a narrow, but real, sense this involves the representation of self-interests. However, in this very basic and broad subject, the interests of retailers will be less directly affected, it appears, than those of producers and consumers of goods in which retailers deal. If this bill would assure meaningful and nondeceptive packaging and labeling, and do nothing more, we would not be concerned.

We are, instead, concerned that its unprecedented scope and administrative procedures would at least delay and complicate the introduction of new products, and at worst could regiment them and stifle initiative. These latter factors are the essence of the competitive process and work in the very direct interests of consumers as well as producers and resultantly of the entire national economy. Through a more precise definition, the real question of the scope of any expanded regulatory powers could be explored in much more specific and measurable terms than is now possible. We know from hard and costly experience with consumers and consumer commodities that generalizations applied to the constantly changing marketplace will too often discard the baby with the bath As the purchasing agent for the consumer we most heartily applaud the announced purpose of truthful and useful packaging and labeling, but in that

water.