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It represents packers of more than 60 percent of the canned foods produced in the United States, not including milk.

Its membership is about 650 firms, operating 1,070 plants. The association is in full sympathy with the purpose of the Department of Agriculture to correct such deficiencies as have been found to exist in the present Food and Drugs Act, and the recommendations it presents on behalf of the industry are based upon its desire to assist those responsible for legislation in formulating a measure that will accomplish the purposes desired without imposing unnecessary hardship.

It is the opinion of the industry that many, if not most, of the new or revised provisions embodied in S. 1944 are more directly applicable to products other than foods, and for that reason we earnestly petition that you give consideration to the preparation of a separate food bill. Foods differ as widely from drugs and cosmetics both in nature and in character of control necessary over them that separate legislation would eliminate many of the problems involved in formulating and enforcing a law designed to cover all these classes of products.

The suggestions and recommendations we have to make relate to the provisions as carried in S. 1944. If a separate food bill should be prepared, these suggestions and recommendations we request be embodied in that bill.

As a general amendment, we recommend that wherever the word "health" is used there be substituted the words "public health." The word "health" alone might be interpreted to mean the susceptibility of an individual to injury from a food that may be eaten with impunity by the normal person. Other specific recommendations are as follows:

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The term "canned food" shall mean all food which is in hermetically sealed containers and is sterilized by heat, except meat and meat food products which are subject to the provisions of the meat inspection act of March 4, 1907 (34 Stat. 1260), as amended, and except canned milk.

The addition of this definition is because of revisions that will be
recommended in section 11 of the bill.
Section 3 (a), line 23, page 3.
Section 3 (a), line 6, page 4.

word "may have."

Delete the words "or may be."
Substitute the word "has" for the

The canning industry believes that the determinations provided for in this section should be based upon fact rather than conjecture. Section 7 (a), line 19, page 8. After the word "food" insert the words "other than canned food." After line 24, page 8, add "If it be canned food and falls below the standard of quality or fill of container, promulgated by the Secretary for such canned food, and its package or label does not bear a plain and conspicuous statement prescribed by the Secretary of Agriculture indicating that such canned food falls below such standard." The addition of this paragraph is also requested because of recommendations that will be made in connection with section 11.

Section 7 (f), line 6, page 9. Delete the phrase "in order of predominance by weight." This phrase is not necessary to accomplish the purpose of the paragraph which, we are advised, is for the protection of individuals suffering from some form of allergy. Moreover, it

would appear to be confiscatory in view of the fact that it required. practically a revelation of manufacturing formulae which are the private property of the producers.

Section 11, line 14, page 15. After the word "food" insert "other than canned foods." Insert following section 11 the following as 11 (a):

Section 11 (a). The Secretary is hereby authorized to fix, establish, and promulgate from time to time reasonable definitions of identity and a reasonable standard of quality and fill of container for each class of canned food as will in his judgment promote honesty and fair dealing in the interest of the consumer, and he is authorized to alter or modify such standard from time to time as in his judgment, honesty, and fair dealing in the interest of the consumer may require. Whenever the Secretary deems that for the purpose of this act any such standard would be established for any canned food, he shall give notice of a proposed standard and of the time and place of a public hearing to be held thereon not less than 30 days after the date of such notice. After such public hearing the Secretary may fix, establish, and promulgate such a standard for such canned food. The standard so promulgated shall become effective on a date fixed by the Secretary, which date shall not be prior to 90 days after its promulgation. Any such standard may be amended or repealed after notice and hearing as hereinbefore provided, and if amended or repealed the amendment or repeal shall become effective in the manner and at the time hereinbefore provided.

The purpose of this proposed amendment is to continue in effect the provisions of the McNary-Mapes amendment to the Food and Drugs Act, which was proposed by the industry itself and enacted with the approval of the Department as a measure directly in the interest of the consumer. When the industry proposed the amendment it recognized the need of a mandatory labeling requirement enforceable under a criminal statute. It desired a mandatory provision because of the need of control over that small minority of manufacturers who, under a system of permissive labeling, might continue practices that are not in the consumer's interest. It desired a provision under a criminal statute so as to give greater strength to the enforcement of the law's requirements.

It desired standards based upon tangible characteristics and qualities susceptible of accurate determination or measurement rather than upon personal judgments, opinions, or tastes, because of the difficulties and dangers involved in the enforcement of a criminal statute upon the grounds of personal opinion. To appreciate the truth and force of this statement it must be remembered that in connection with canned foods there are certain undefinable elements, and elements of major importance, such as flavor and appearance, which it is impossible to describe with the degree of accuracy necessary in connection with enforcement of a criminal statute. It desired a law that, while not attaining immediately the whole purpose of completely informative labeling, would affect improvement and thorough actual experience enable the industry and the Government to extend the program for better labeling. It desired, above everything else, to secure a law that could be and would be enforceable, rather than a law the enforcement of which would prove unfeasible and thus open the way to abuses more injurious to both the industry and the consumer than existed under former legislation.

For these reasons the industry earnestly requests the retention of the McNary-Mapes provisions, in the belief that they represent a feasible, practical method of working out a solution of the labeling question as applied to canned foods, and that provisions going beyond

the McNary-Mapes requirements and seeking to attain an immediate ideal solution of the problem will prove ineffective and unenforceable, and thus simply delay the improved conditions desired by both the industry and the consuming public.

Section 12 (a), line 6, page 16. Delete words "the Secretary finds that"; line 12, page 16, delete word "he" and insert the word "are." These revisions are recommended in the belief that action by the Secretary of Agriculture should be based upon established facts rather than upon opinion.

Section 13 (a) (2), lines 22 and 23, page 17, Delete the words "methods, processes." It is recommended that these be eliminated because their inclusion would give an opportunity for the acquirement of secret and confidential procedures which are not necessary to accomplish the purposes of the Act, and the dissemination of which would be greatly to the disadvantage of the manufacturer.

Section 13 (b) (1), line 10, page 12. Delete the words "methods, processes" for reasons above stated.

Section 17 (b). We recommend that the minimum fines provided for in lines 7 and 10, page 24, be eliminated. As written, the bill makes it mandatory to assess a heavy fine for a possibly trivial offense. It is believed that the penalties for trivial offenses should be less severe than are appropriate for offenses of a graver nature. Moreover, there will be difficulty in obtaining a conviction where conviction carries a comparatively heavy fine for an offense that may not be of a grave character. We also recommend the addition to this paragraph of a provision substantially the same as in the present Food and Drugs Act (section 2) relating to foods that are exported, to read as follows:

Provided that no food not adulterated according to Section 3 (a) shall be deemed misbranded or adulterated within the provisions of this act when intended for export to any foreign country when no substance is used in the preparation or packing thereof in conflict with the laws of the foreign country to which said article is intended to be shipped; but if such food shall be, in fact, sold or offered for sale for domestic use or consumption, then this proviso shall not exempt such article from the operation of any of the other provisions of this Act.

Section 18: It is the feeling of the industry that section 18, which makes no distinction between acts that are willfully criminal or due to criminal negligence, and acts that are inadvertent or accidental, may impose undue hardship upon officials and others who are endeavoring in every way to comply with the law.

Section 21: We recommend that the words "and for the protection of the consumer against fraud," lines 2 and 3, page 29, be eliminated. The industry believes that the dissemination of precautionary information is justified when questions of public health are involved, but does not believe that beyond this there should be authority by publicity in advance of the findings of fact.

Section 22: We ask the elimination of this section, as serving no useful purpose so far as canned foods are concerned. It seems futile and undesirable to set up machinery for certification of unenforceable definitions.

To the extent that certification of quality standards for canned foods in connection with wholesale transactions is desirable, which desirability is not here questioned, the provisions of the warehouse act are available. This act provides for Federal examination of submitted samples and grade certification according to standards

established by the Bureau of Agricultural Economics, and also provides for voluntary cannery inspection and certification service. It is understood that to some extent canners have availed themselves of these services and facilities with satisfactory results in intertrade transactions.

A certain small portion of the canning industry believe that the Bureau of Agricultural Economics grades are as suitable for enforcement purposes under a criminal statute as under civil statutes, and may appear as active proponents of section 11 and section 22 of this bill as drawn; but the governing board of the National Canners Association rightly holds that experience and evidence cannot be ignored.

There can be cited convincing public statements of informed and responsible officials to fully substantiate what we have said respecting the limitations in the matter of grade definitions of canned foods. To the extent of such limitations the folly and futility of idealistic and unenforceable laws must now be, as never before, apparent.

Section 23 (a), line 5, page 30. Delete the words "he may deem" and substitute "are"; lines 11 and 12, delete words "they may deem" and substitute the word "are." This recommendation is in line with the previous recommendation as to section 3 where it was stated that determination should be based upon facts rather than upon conjecture.

Section 23 (c), lines 2, 3, and 4, page 31. Delete last sentence of paragraph. The elimination of this sentence is requested because of recommendations hereafter to be made.

Section 24. We recommend that section 24 be eliminated from the bill. This section gives the consumer no rights which he does not already have under other legislation and the relatively drastic provisions of this bill will doubtless invite an increase in the fraudulent claims for injury which have been increasing at an alarming rate, and, in certain sections, constitute a racket.

Add new section to constitute section 27 as follows:

Section 27 (a). In any action suit or proceeding involving any regulation made. promulgated, or prescribed under this act, such regulation and any evidence considered by the Secretary and any findings made by the Secretary may be reexamined by any court as to any question of fact as well as law.

(b). In any proceeding involving the issue, renewal, suspension, or reinstatement of any permit under this act, or in any other action, suit, or proceeding involving the rights of any person affected by this act or any action taken thereunder, any action by the Secretary, any evidence considered by the Secretary, and any findings made by the Secretary, may be reexamined by any court as to any question of fact as well as law.

The addition of this section is recommended as a precautionary safeguard against possible misuse of delegated powers.

The CHAIRMAN. Thank you very much.

I will call upon Mr. Bruce Kramer at this point.


Mr. KRAMER. Mr. Chairman, I do not desire to discuss the measure before the committee but, for the purpose of the record, as the counsel for the Drug Institute of America, an organization comprising a membership of approximately 40,000 units in the industry, I desire to have the record show that the Drug Institute of America endorses the views

so ably and forcibly expressed by Dr. Beal during his presentation. to this committee.

If the record will so show, I will conserve the rest of your time.
The CHAIRMAN. Thank you very much, Mr. Kramer.

The next speaker will be David F. Cavers, professor of law at Duke University.


Mr. CAVERS. Mr. Chairman, my name has been indicated. My connection with this measure arises from the fact that I was requested by Assistant Secretary Tugwell to join in a group which assisted in the drafting of this measure which Senator Copeland introduced as S. 1944.

I am sure all of us who participated in that work feel that we have had presented yesterday, this morning, and this afternoon constructive suggestions with respect to the bill.

I also have no doubt that the committee will give them its earnest consideration and that a better measure will result.

I do not wish to undertake an extended rebuttal of what I believe are some misconstructions of the language in the bill.

For one reason, the chairman of this gathering has by his searching questions, I believe, very frequently dissipated those misconstructions.

His evident interest in the protection of the consumer through remedial legislation, and his fairness, I am sure, will be appreciated by all those who have any connection with this measure.

I would, however, like to question whether the insertion of adverbs such as "materially", "inherently", "essentially", and the like, can be regarded as constructive suggestions by any other than members of the legal profession.

I have no doubt that they will prove a great boon to them, but I wonder whether an advertiser would feel that his interests were advanced by the ability to assert, where that his advertising was admittedly false, the defense that it was not very false, not materially false, not particularly false.

I question whether that would do him any good, and I know that it would remove teeth from the law.

I should like to present for your consideration the position which some of us who worked on the legislation find ourselves in.

In some instances we undertook the drafting of general standards of conduct. Now we find them too broad; at least, so we are told. In some instances we endeavored to use specific statements; now we are told they are too rigid.

In some instances we sought to secure both specific rules and flexibility through the use of the administrative machinery of the Government, subject at all times to the control of our courts.

Now we are told that it is bureaucracy and tyranny.

It seems that when you put those three views together, after making proper allowance for the valuable suggestions which have come to us, the result is that there is left open only the drafting of rules which are like silent policemen at street intersections they do not cover much ground, and they are easy to get around.

I do not think that you want that sort of legislation; I am sure that the Committee does not, and yet it seems essential that in some situa

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