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MOLD TOLERANCE ON COCOA

The international standard for mold tolerance of 12 percent, fixed by long experience, meets average crop conditions and does not diminish the quality of any finished cocoa product. No necessity has been shown to arbitrarily reduce this standard to 5 percent, practically amounting to an embargo on all Pacific coast importations of consumption cocoa beans. The average yearly mold percentage of Accra cocoa beans, representing more than 60 percent of the world's crop, is 4.1 percent as stated in "Foodstuff's Round the World", United States Department of Commerce, dated August 19, 1932. The Brazilian statistics are about the same. Cocoa beans are semifermented and therefore subject to deterioration in transit and the longer water borne trip to Pacific coast ports puts us at a definite disadvantage with the East Coast, as proven by actual experiences. The Food and Drug Administration does not admit such deterioration, although it has made no tests whatever on Pacific coast imports. Its theory is pure assumption.

According to the Department of Agriculture's ruling of August 26, 1931, all cocoa bean shipments arriving after October 1, 1931, could not be segregated any more, when a partial excess mold count was found, except if destruction of the nonpassable portion was agreed to. This abrogates the provisions of_the_tariff act, granting importers the right to either reexport or destroy. Acting Secretary of Agriculture, R. W. Dunlop, justifies this action in a letter dated October 16, 1931, as follows:

"Under the provisions of the Federal Food and Drugs Act, section 11, the broadest discretion is conferred upon this Department in the control of importations of food and drugs. It may make a conclusive finding of fact as to the admissibility of such articles into the country. It follows, therefore, that having absolute authority to determine whether, under the law, articles of food or drugs should be prohibited entry, it may make a qualified finding which will permit the entry, conditionally, of partly adulterated or improperly branded consignments, which can be made to conform to law. The Department in such instances possesses authority to prescribe the condition upon which such consignments may be entered, and may impose such restrictions upon the importers thereof as it may deem necessary or apparent, therefore, that the Department may, within the limits of its lawful authority, make its findings and recommendations as to the admissibility of consignments such as those in question, dependent upon the destruction of the unfit portions thereof."

Large East coast importers can make arrangements with steamship lines, to ship rejected cocoa beans, at a nominal cost, to Toronto or Liverpool or continental ports where such shipments can be sold a few days later at full value if below 12 percent mold. Pacific coast importers are at such a disadvantage that business is practically impossible without covering the risk by adding to the cost, thus making us noncompetitive. It is doubtful if Congress ever intended to give such powers to the Food and Drug Administration.

The effect of the nonsegregation ruling is shown in the precipitious decline of imports and its resultant damage to the industry. Any actual comparison between the amount of rejections on the East coast and on the West coast is purely academic and simply means that western importers understood the consequences of this ruling. Mr. P. B. Dunbar, Assistant Chief of the Food and Drug Administration, in a letter dated June 20, 1933, arrived at a fallacious conclusion when he stated:

"The administration had occasion to make a study of its activities on cocoa bean entries from June 1932 until recent times. This study revealed that during the period there were refused entry at the port of San Francisco a total of 364 bags as against detention of 74,000 bags which were offered for entry at the port of New York.

"Comparison of these figures does not make it apparent that the industry on the west coast suffered more severely than that on the east coast."

The abrogation of segregation and the right of re-export is an intolerable academic interference in the delicate_machinery of foreign trade. It is an usurpation of power on the part of the Food and Drug Administration, questionable as to its legality and destructive as to its consequences.

SAN FRANCISCO Cocoa Trade Committee,
H. VANDEL.

Hon. ROYAL S. COPELAND,

HOUSE OF REPRESENTATIVES, Washington, D.C., December 23, 1933.

Chairman Senate Committee on Commerce,

United States Senate, Washington, D.C.

MY DEAR SENATOR: In connection with Senate bill 1944, proposing amendments to the Food and Drugs Act, I beg to hand you herewith, at their request, statement of the California Fruit Exchange of Sacramento, Calif., with the request that it be inserted in the printed hearings.

This organization is a growers cooperative marketing organization with a membership of several thousand and its management is of an exceptionally high character.

Will you kindly advise me whether additional copies of this statement are desired for the use of the committee. If so, I shall be glad to have the Exchange furnish them.

Sincerely yours,

FRANK H. BUCK.

STATEMENT OF CALIFORNIA FRUIT EXCHANGE, SACRAMENTO, CALIF., RE S. 1944PROPOSED NEW FOOD AND DRUGS ACT

(The California Fruit Exchange, with headquarters in Sacramento, Calif., is a nonprofit, growers' cooperative marketing organization. It handles in a normal year approximately 15,000 carloads of fresh deciduous tree fruits and grapes. Its membership totals about 5,000 growers.)

In presenting this statement, the California Fruit Exchange wishes to go on record at the very outset to the effect that it endorses, without reservations, the principles involved in pure-food legislation. The rights of the great body of American consumers are paramount in food merchandising. They are entitled to every protection from a health standpoint, and no organization which fails to recognize this simple fact can be successful for any long period of time.

The proposed bill, however, goes far beyond these basic principles. As a whole, it is dangerous in character. Without analysis it has a very deceptive popular appeal, but basically the bill is predicated upon a complete shift from commonly accepted legal concepts to bureaucracy. The act is a criminal statute, conferring directly upon the Secretary of Agriculture authority to make rules, regulations, standards and tolerances which will have the full force and effect of law, and from which there is no appeal except to the courts. No method is provided for the right of appeal within the department; no separation is made between willful violations and technical violations in the matter of fines; and in our judgment it goes far beyond anything required to protect the public health.

Originally, and up to this time, the Food and Drug Administration has been a regulatory, police body. Its primary duty has been to protect public health through the existing Food and Drugs Act. This bill, however, gives the Secretary and the Food and Drug Administration, who will enforce the act, the right to impose mandatory grading standards on food industries, including perishable fruits and vegetables. Such grading standards as have been recommended by the Department of Agriculture to date have emanated from the Bureau of Agricultural Economics, an organization which is both service and regulatory in character, but which has been composed in large measure of men who have had actual practical experience in the handling and marketing of agricultural commodities. These men have not been essentially police officers, and they have the right attitude toward the practical phases of the agricultural industry. The various grading standards recommended by this Bureau to date also have been for the most part, permissive in character. In some cases they have been mandatory, but only with the consent of the industry involved.

We feel, therefore, that foods should be separated from the proposed measure; that the present Food and Drugs Act should be revised as a pure food bill; and that with the support of the many court decisions which have been obtained over a long period of years since the present measure has been in force and effect, it should be strengthened in some details rather than attempting to include foods with drugs and cosmetics in new legislation.

Obviously, no one can defend the indiscriminate, reckless sale of dangerous patent medicines which are incorrectly or incompletely labeled and falsely advertised. The food industry as such, however, is certainly not in the class with these fake remedies. On the whole, it is an industry in which the best of practices prevail, and in any event is large enough to stand independently and on its own feet.

Should it prove impossible at this time to divorce foods from drugs and cosmetics, and give us a separate act, attention is directed to the following in S. 1944: Section 2, paragraph (e), line 20, on page 2 of the printed bill defines the term "interstate commerce" as meaning "commerce between any State or Territory and any place outside thereof, or between points within the same State or Territory, but through any place outside thereof.' This immediately extends the jurisdiction of the Secretary of Agriculture to export shipments; a new idea in defining interstate commerce. Why the Secretary of Agriculture should assume jurisdiction over shipments of any food commodity to foreign countries is impossible to determine. Surely our departments of the Federal Government have enough to do to protect our own people and the citizens of this Nation without attempting to foist on foreign countries their opinions and ideas. The peoples of central Europe for example, may, because of food habits or financial reasons, choose to buy certain substandard goods. If they care to do so, that is their business. The restrictions and laws of foreign countries are varied and wide enough at present to protect their own nationals. There is no need for the United States entering this field.

Section 3, the word "shall" in line 22 should be eliminated and the word "may" substituted in lieu thereof, so that the first sentence reads, "A food may be deemed to be adulterated" instead of "shall be deemed to be adulterated." The ambiguous language in paragraph (a) of section 3, "if it is or may be dangerous to public health" should read "if it is dangerous to public health."

The milk people are somewhat afraid of lines 12, 13 and 14 on page 4 in section 3, reading among other things "if any valuable constituent has been in whole or in part extracted therefrom." What about skim milk? Certainly valuable constituents have been removed from the subsequent product, but the final product is in no way dangerous to public health. The department may explain that they would not proceed against such products, but the language gives them authority to do so.

* * * 19

In section 6, "Misbranding", paragraph (a) is replete with inferences and presumptions. It states "if its labeling is in any particular false, or by ambiguity or inference creates a misleading impression regarding any food The words "or by ambiguity or inference creates a misleading impression" should be eliminated. To vest in the Secretary or the Food and Drug Administration the right to interpret what is ambiguous or inferential or what creates misleading impressions, is certainly dangerous; the language is anything but specific; and any Federal criminal statute should be specific if it is going to be fair.

In paragraph (b) of section 6, subparagraph (2), it is required that an accurate statement of the quantity of the contents and terms of weight or numerical count may be prescribed by regulations of the Secretary. Reasonable variations are permitted as to small packages of foods. Certainly reasonable variations should likewise be permitted for packages containing fruits and vegetables which as you know from experience, vary in weight, and tolerances or variations must be permitted to accommodate this necessary situation.

Paragraph (c) of section 6 requires the placing of the label in a prominent and easily seen position, readily intelligible to purchasers. What about bulk retail sales of fruits and vegetables? If this authority is extended to such sales, enforcement would be difficult, if not impossible. Bulk sales should be exempted from this requirement.

Section 7, "Misbranding of Foods", is an omnibus section. Fruits and vegetables should really be exempted entirely. The word "shall" in the first sentence should be stricken out and the word "may" substituted in lieu thereof. Paragraph (a) authorizes the Secretary to prescribe the standard of fill in packages, which introduces at once the matter of quality, grades, and standards, thus going far beyond the necessities of a public health measure. There is no similar provision in the present statute. If language is used such as "if its container is so made, formed, or filled as to mislead the purchaser" permission should be given to use caps, cushions, pads, packing material of all kinds normally utilized in shipping fresh fruits and vegetables.

Subsection (f) of section 7 on page 9 requires on the label the common or usual name of each ingredient in the package, in order of predominance by weight. Food industries, other than the fresh-fruit industry on the Pacific coast, object strenuously to this provision. In many cases it is impossible to comply with such a requirement. It carried to its conclusion, it would necessitate revealing secret and patented formulae to competitors. The contention that the patent laws fully protect the food manufacturer in this regard is untenable, because 30390-34

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clever imitations might be developed through the revelation of secret processes, and certainly it would encourage close similarity to any product which had proved a success from a merchandising standpoint

Section 9, entitled "False Advertisement", is exceedingly far-reaching and dangerous. It is of course all right to say that advertising shall not be untrue, but to say as this section does in paragraph (a) that an advertisement shall be deemed to be false if it "by ambiguity or inference creates a misleading impression" is again presumptive language. This entire clause should be stricken out.

It is altogether too indefinite.

Section 10, fixing tolerances for poisonous ingredients in food, and vesting in the Secretary complete authority to establish these tolerances, in our judgment goes altogether too far, and is an assumption of unwarranted arbitrary power. The right of appeal should be given in this section to a competent advisory council, the complexion of which should be set forth in the act with proper safeguards, insuring the selection of a fair court of appeal within the Department itself.

Section 11, entitled "Definitions and Standards for Food", introduces a new thought in food and drug legislation. It vests in a regulatory, police body the authority to fix and establish not only definitions of identity, but standards of quality and fill of container for any food. Fruits and vegetables should be exempted from this provision. As already pointed out in the general introduction of this statement, permissive grading standards for fresh fruits and vegetables are now promulgated from time to time, and upon consultation with interested industries by the Bureau of Agricultural Economics. The same organization has been conducting the nation-wide shipping point and terminal market inspection service where these grades are put into practical operation. This organization has been doing that work for many years. There is no reason why it should be transferred to the Food and Drug Administration, and likewise no reason why, particularly for fresh fruits and vegetables, such grades should be made mandatory in character. This goes far beyond the necessities of protecting public health.

Sections 12 and 13, "Permit Factories and Factory Inspection", are not in the present law. If enacted, it means more officials, more inspection, and all to no purpose. There is ample authority for condemning food products at the present time which are in violation of good practice, or dangerous to public health. Fresh fruits and vegetables should be exempted from such regulations. The dried and canned fruit industries of this State are very much opposed to these two sections also. They point out that even permissive factory inspection would eventually force all food manufacturers to submit themselves to this activity. If small manufacturers availed themselves of permits and factory inspection, and advertised the fact that they were under Federal supervision, it can easily be seen that as a matter of self-protection, all would have to enter the field.

Section 14 authorizing carriers engaged in interstate commerce to permit officers or employees of the Department to copy all records showing the movement in interstate commerce of any food, the nature, kind, quantity, shipper, and consignee thereof, is another example of too much Government interference. Federal authorities have plenty of law at the present time enabling them to secure records where needed. They can subpena witnesses, books, papers, and records of all kinds from the shipper or manufacturer, There is no need for this additional authority.

Section 16 on seizure is exceedingly drastic. It does not provide, even in cases where there is reasonable doubt, for the release of the goods under bond. It places the articles immediately within the jurisdiction of the court. It really permits destruction of a perishable product without legal recourse. This language should be analyzed carefully and proper safeguards introduced

Section 17 on penalties, makes no differentiation between willful violations and wholly innocent violations. It should provide for remedial action through conference with the Secretary, and perhaps the advisory council above suggested, but penalties should only be imposed in the event of willful violation. It will be noted by comparing with the present Food and Drugs Act, that the fines have been substantially increased. Publishers and advertising agencies are solicited for support in this section, by exempting them from prosecution_in paragraph (d), when they furnish the Secretary with the name and post-office address of the person who caused them to disseminate advertisements deemed to be false or misleading. Often times the advertising agency may be equally guilty with the advertiser.

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The voluntary inspection service provided in section 22 should provide that if it is taken advantage of by any industry, such as the fresh pear and apple industry, for example, that the findings of the inspector at point of origin are absolutely final. The Food and Drug Administration has consistently evaded assuming this responsibility, although they are perfectly willing to seize goods after they have moved in interstate commerce and condemn them. We believe that if voluntary inspection service is instituted, at point of origin, that the findings with reference to spray residue tolerances should be final, conclusive and binding.

In section 23 the Secretary's findings are made conclusive. made prima facie evidence in court but not conclusive.

They should be

Section 24, Liability for Personal Injury, is very dangerous. It should be eliminated, as it merely places the stamp of approval of the Federal Government on "ambulance chasers" and persons attempting to take unfair advantage. One large food industry organization maintains a large fund for the express purpose of fighting professional damage seekers. There is plenty of law on the statute books at the present time under which a person can sue for damages. This additional language is not needed.

It is reported on good authority that many of these provisions, if enacted into law, will be introduced into codes and marketing agreements, which again indicates the need for closest attention to this bill.

While this analysis deals with the measure from the standpoint of the fresh fruit industry, we subscribe whole-heartedly to the complete analysis made by the State Chamber of Commerce, in which we had a part, and herewith attached. This is the latest revised copy, and analyzes the measure from the standpoint of our many industries here in California.

Respectfully submitted.

Hon. ROYAL S. COPELAND,

F. W. READ, Manager Standardization Department.

THE NATIONAL DAIRY UNION, Washington, D.C., December 20, 1933.

Senate Office Building, Washington, D.C.

MY DEAR SENATOR: Representatives of the butter industry have been giving very careful attention to the proposed amendments to the Food and Drugs Act and wish to suggest certain charges which we believe your familiarity with the butter industry will lead you to support.

We are enclosing herewith a brief to be included in the record of the hearings

and wish to ask you to give it your personal attention.

You will note that the three amendments which we suggest and the reference

to the language of three other sections are in no way critical of the general pro posals incorporated in your amendments but call attention only to matters which are we believe limited almost exclusively to the butter industry. This is explained in the brief. Specifically we ask

1. That the Butter Standards Act should not be repealed.

2. That the definition of a "second offense" shall be such as to eliminate absolutely unintentional offenses and offenses which may be committed without intent in entirely different plants or under entirely different circumstances than those accompanying a first offense.

3. That after seizure notice shall be next the actual owner and he be given samples. These are our major interests.

Yours sincerely,

A. M. LOOMIS, Secretary.

BRIEF ON PROPOSED AMENDMENT TO FOOD AND DRUGS ACT KNOWN AS "S. 1944"

OR "H. R. 6110"

In the commercial manufacture of butter it is not possible to control the exact composition of all parts of any individual churning.

Butter is not made by weighing and putting together certain ingredients and stirring them up like a woman making a cake.

The process of butter making is one of eliminating moisture so as to leave the finished product with a legal content of butterfat.

Churns used in the butter-manufacturing plants are cylinders or drums often 6 to 9 feet in length and from 4 to 6 feet in diameter, making as high as 1,200

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