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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 fantory 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.

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. They should be made prima facie evidence in court but not conclusive.

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.

F. W. READ, Manager Standardization Department.

THE NATIONAL DAIRY UNION,

Washington, D.C., December 20, 1933. Hon. ROYAL S. COPELAND,

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 “8. 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 pounds of butter in one churning. It is physically impossible to control the physical conditions or the exact composition of the resulting butter in all parts of the churns at one time, and the butter in different parts of the churn may vary as much as 1 percent of butterfat.

The judgment of the buttermaker comes into play in dealing with the variations in temperature and in the variations of butterfat consistency which, due to different feeds, different times of year, and other condition may be hard or soft in texture and therefore carry more or less moisture. Proper manipulation by the buttermaker is subject to variations of human judgment and therefore subject to human errors.

In sincere efforts to comply with the present law providing no tolerances many manufacturers have frequently made exact tests, taking samples from various parts of the same churning. These samples have shown a variation in butterfat content as high as 1 percent. In general practice variations up to one half of 1 percent are common. It is entirely impractical in commercial operation to make numerous tests from each churning,

The large number and comparatively small size of the majority of the buttermanufacturing plants make it impossible to have highly skilled, technically trained buttermakers in charge.

Consideration should be given to the fact that there are more than 5,000 creameries operating in the United States. These plants are in charge of butter. makers as a rule well trained, but not equally efficient in making laboratory tests.

The best buttermakers have from 2 to 3 years' training, including the necessary technical knowledge obtained in an agricultural college course. Men of this training can be employed in the larger plants. To provide men for the smaller plants the agricultural colleges maintain a shorter course, and the smaller plants are in charge of such men as are available. At times the testing apparatus may be slightly out of order and exacting duties such as attention to a steam boiler may not at all times permit the meticulous care required to maintian a standard. Under all of the considerations which we are stating we are pointing out that the determinations may vary unintentionally and even adequately equipped and trained laboratory experts are frequently confronted with the same variations.

We are as much concerned as the officials of the Food Administration are, that errors due to negligence or to the deliberate employment of improperly trained personnel should not be permitted but the unintentional error or the slight deviation from standard due to uncontrollable causes should be allowed for.

Section 26 in the proposed measure repeals the Butter Standards Act of March 4, 1923. At the annual meeting of the American Association Creamery. Butter Manufacturers, December 5, 1933, the following resolution was unanimously adopted:

Whereas Senate bill 1944, cited as the “Federal Food and Drugs Act”, proposes to repeal the present standards for butter and which standard was executed by the Congress of the United States, and

Whereas that standard was promulgated after extended and full hearings and the entire butter industry of this country is now adjusted to it, and since it fully controls the industry and protects the consuming public; be it

Resolved, That the American Association Creamery Butter Manufacturers, in annual meeting, is opposed to the repeal of the Butter Standards Act of March 4, 1923.

We have interviewed the Secretary of Agriculture and others and cannot find anyone in favor of this repeal; therefore, it is perhaps an oversight, nevertheless, section 26 (a) of S. 1944 provides that the Federal Food and Drugs Act, as amended, namely U.S.C., title 21, sections 1 to 15, shall be repealed. Section 6 of said U.S.C., title 21, is the act to define butter and provide a standard therefor. Passed March 1923, chapter 268, 42 Statutes 1500, so that under the proposed bill, that section of the law is repealed, it being, as indicated above, section 6 of the sections 1 to 15 of the U.S.C., title 21.

We suggest that section 26 in the proposed measure be amended at the end of line 20 to read:

“That section 6 of said U.S.C., title 21, an act to define butter and provide a standard therefor, approved March 4, 1923, shall remain in full force and effort also provided.”

SECTION 17 IN PROPOSED MEASURE

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We respectfully submit that the general principle of increased penalties for second or subsequent offenses should only be directed at repetition of improper practices by the individuals in management or those in physical control of the production operation.

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If substandard products are repeatedly found coming from the same plant, caused by conditions well within the control of the management, such repeated violations of the act are prima facie evidence of intent to violate the law, and we offer no objection to increased penalties in such cases.

With regard to multiple-owned plants under separate and distinct management, we submit that second or even moderately repeated substandard shipments, are not pirma facie evidence of deliberate intent to violate the law unless such repeated substandard products come from one single unit or plant.

In the butter-manufacturing industry the ownership and operation of multiple plants is common and is increasing, both among the privately owned units of the industry and the cooperatively owned units of the industry. A striking example is found in one large cooperatively owned unit which now has exclusive sales rights under specific brand name for the butter produced in more than 350 plants. Multiple ownerships in the industry ranges from 2 plants to 350. The danger of increasingly heavy penalties for second and subsequent offenses charged to the same company or the same responsible sales agency and its inequity is self-evident when the control of the composition of the product rests in the individual buttermaker in one plant for one violation and in a buttermaker in another plant in a different locality for the next violation.

We therefore recommend that section 17 (6) (b) be amended to include the following:

Provided, That the penalty for such subsequent offense shall be conditioned that the offense was committed in the same processing plant or factory as the first offense or with the knowledge of the general management.”

SECTION 16 IN PROPOSED MEASURE

The owners of seized articles, especially a perishable product like butter, should have prompt notice and if they desire a representative sample of the article seized, so that they might in an intelligent manner and in the good cause of justice, prepare a defense. We recommend the following amendment to section 16:

"In case of seizure, notice shall be given at once to the actual owner and they shall be allowed a representative sample of the article seized.”

SECTION 18 IN PROPOSED MEASURE The language in this section should be made clear so that personal liability will not attach against anyone unless knowingly taking part in a violation.

SECTION 21 IN PROPOSED MEASURE

Publicity is a powerful weapon. It would seem that the manufacturer should be given some protection under this section. The proposed measure is a strenuous one and the penalties are heavy. We speak only for those who are drawn into court by reason of accidental and unintentional violation.

SECTION 22 IN PROPOSED MEASURE

We object to this section for the reason that it is entirely discriminatory. The larger establishments can afford to pay for this inspection service and the advertising value. This service cannot be given to the small operator and his plants are by far in numerical majority. He is not in position to pay the Government for this service.

There are many creameries throughout the United States, and many of them are moderate in size, and expensive help or experts cannot be afforded or employed. In that respect creameries differ from most other plants where food is prepared, processed or manufactured.

The making of butter is an old industry, a sort of natural evolution. Fraud is seldom met with. Creameries are found not alone in large centers but in the smaller villages; and, as stated, the labor employed usually receives modest wages.

Thus, human failings should be somewhat allowed for; and if a churning of butter goes out slightly below the legal standard, such an act might be accidental and entirely unintentional. The judge of the curt should be permitted to recognize this when the penalty is meted out.

AMERICAN AssociATION CREAMERY BUTTER MANUFACTURERS,
By W. JENSEN, Secretary-Manager.

THE NATIONAL DAIRY UNION,
By A. M. LOOMIS, Secretary.

LETTER OF MERRILL HUTCHINSON, PRESIDENT HUTCHINSON ADVERTISING Co. MINNEAPOLIS, MINN., TO SENATOR HENRIK SHIPSTEAD

MINNEAPOLIS, MINN., December 15, 1933. The Hon. HENRIK SHIPSTEAD,

Minneapolis, Minn. MY DEAR SENATOR: On behalf of the group here present, I want to thank you for your courtesy in granting us this opportunity to meet with you and present certain information respecting the provisions and possible consequences of the proposed Federal enactment S. 1944 and H.R. 6110, commonly designated as the Tugwell bill, which we understand will come before Congress in January.

We, of course, have a direct and vital interest in this bill. We do not challenge the sincerity of United States Senator Royal S. Copeland or Congressman William I. Sirovich, who appear as sponsors of the bill, although admittedly not its writers. We raise no question as to the possible need for amendment of the present Pure Food and Drug Act. We were prompted to request your consideration today because of our confident belief that you desired to be in possession of all available information respecting the likely results of the application of any new legislation, and particularly as it might affect not only the entire body, of your constituents but also the business interests with which such constituents' livelihood is inseparably woven.

With your full comprehension of the vicissitudes by which business in general has been beset during the past few years, and the delicate balance between profit and loss figures which obtains in most businesses today, we realize that we do not need to tell you that immediate consideration of any measure of the import of the Copeland bill, not having the urgency of some of the so-called emergency legislation hastily enacted at the last term, merely serves to aggravate furtherand we believe unwarrantedly—an already delicate situation. Many representative business men are in agreement that if there is any single obstacle contributing more than others to retardation of economic rehabilitation, it is the factor of uncertainty: uncertainty respecting the imminence of enactment of inimical legislation, Federal and State; uncertainty respecting interpretations and applications of existing experimental legislation, such as that affecting the monetary situation; uncertainty concerning conditions of peace, war debts, tariffs, armament, and many others in the foreign countries.

In its present form, Senate bill 1944 is loosely drawn, indefinite, impractical, unduly severe in penalties prescribed, and contravenes established court procedure. As drawn, the bill does not represent in substance what its title purports to have it constitute; namely, a bill “to prevent the manufacture, shipment, and sale of adulterated or misbranded foods, drugs, and cosmetics, and to regulate traffic therein; to prevent the false advertisement of foods, drugs, and cosmetics, and for other purposes." The powers which this bill, if enacted, would convey upon the Secretary of Agriculture, and which would of necessity in practice be delegated by him to subordinates of varying degree, would vest in the Secretary powers bordering on those of an autocrat, and charge him with responsibility for decisions wherein his opinion, once expressed, is to be given the finality of a court decree, in matters so extensive and complex as to challenge the capacity and wisdom of a Solomon. No reputable manufacturer, no honest advertiser, can take exception to the avowed purpose of that portion of the bill which seeks to protect the public against nefarious practices in respect to foods, drugs, and cosmetics, but there has been incorporated in the bill, evidently under that portion of the title expressed as

and for other purposes” many provisions fraught with danger of great harm, not only to reputable, long-established businesses, but also the great body of salaried employees, whose living is wholly dependent upon the successful continuance in business of the institutions thus affected.

Obviously, this bill was conceived in an atmosphere of distrust and with much greater consideration for the apprehension of the miscreants, whose number, we believe it is admitted, is relatively small, than for due protection of reputable manufacturers and advertisers, whose number, we believe, admittedly is legion. This bill not only contains destructive provisions presently but vests the Secretary of Agriculture with unrestricted power to expand by regulations its provisions at his will to almost unlimited lengths, thus creating a situation wherein manufacturers and advertisers who arrange for compliance with the bill as promulgated may find themselves subject to prosecution for unintentional violation of new regulations contradictory or more inclusive than those theretofore pronounced.

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