Mr. CAMPBELL. No.

Senator COPELAND. That wouldn't go for doctors.

Senator OVERTON. "Public opinion", "reputable public opinion", but that might be just as bad.

Senator COPELAND. They are all reputable.

Senator OVERTON. There are different expressions that could be employed; but unless you put down and adopt some rule that has more accuracy to it than this, it would be a provision that would be interpreted one way by one court and another way by another court, and probably have as many different interpretations as there would be courts to pass upon the term.

Senator COPELAND. Wouldn't that be true anyhow, Judge?
Senator OVERTON. Oh, no.

Senator HEBERT. Well, the best we have been able to do, as you know, Senator, in the trial of cases where expert testimony has been required, is to have the unbiased opinion of the experts, and, up to this point, we have never found any better way of getting that than to have the judge name the expert, free and unconnected with either side of the case.

Senator OVERTON. I agree with you thoroughly.

Senator EBERT. I think that in the trial of cases of this nature, that we might well provide in this statute for the choice of an expert to pass upon technical questions, free from bias on the part of either side of the litigation, and leave it to the judge.

Senator OVERTON. And his fees to be taxed as costs?

Senator HEBERT. And his fees to be fixed by the court and taxed as costs in the litigation.

Senator OVERTON. Yes: I think so.

Mr. CAMPBELL. The next is paragraph (b).

Senator COPELAND. Do I understand, then, for the moment, we leave it here at the point we are now? Senator Hebert, do you agree to that?

Senator HEBERT. Yes; for administrative purposes.

Senator COPELAND. Yes. All right.

Mr. CAMPBELL. The next is paragraph (b), which states that a food is misbranded" if in package form it fails to bear a label containing (1) the name and place of business of the manufacturer, packer, seller, or distributor."

That, Mr. Chairman, is new language under (1). That language was inserted at the suggestion of State officials who were attending the conference we held preliminary to undertaking the draft of a bill.

"(2) [If it fails to bear] an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count"; and then it provides for reasonable variations.

That is the language of the law at the present time.

Senator COPELAND. All of it?

Mr. CAMPBELL. (1) is not. (2) and the proviso under that are. Senator COPELAND. Tell me again which is new. (1) is new? Mr. CAMPBELL. Under (1); yes.

Senator COPELAND. But (2) is old?

Mr. CAMPBELL. (2) is old.

Senator COPELAND. And the proviso is old?

Mr. CAMPBELL. That is right. Of course, that does not apply at the present time to cosmetics or to drugs.

Senator COPELAND. Well, now, we had some appeal to exempt fresh fruits and vegetables from this operation of this provision.

Mr. CAMPBELL. Yes. I think you asked me, yesterday, Senator, what our view was on that, and I stated that I saw no reason for the exemption of fresh fruits and vegetables from this particular requirement. There is as much reason, perhaps, for the exemption of a great many other commodities. It is true that the containers in which fresh fruits and vegetables ordinarily are packed, have been standardized by Federal legislation.

There is a law that establishes the dimension of a barrel. There is a law that establishes the dimensions of the various hampers and baskets that are to be used as containe: for these products. There is no extreme difficulty involved in an indication of the fact that it is " one barrel "if need be, or some other unit that may be indicated as one properly informing to the consumer, by such regulations as can be or may be promulgated under that section.

Senator COPELAND. Well, there is a gentleman here I think a great deal of Mr. Fraser, from my State. Have you any new thought on that, Mr. Fraser?

Mr. FRASER. Well, one distinct difficulty is in the small packages, for instance, tills are often reused, and if they are to carry the name and place of the packer, and then are again used, under our container laws, of course, we put a stipulation in that the man repacking shall remove all previous names and be sure that his own name appears. It may be unnecessary, if you can apply the law, but we have never extended that to the small packages, and these small packages are the ones that are often used over and over again. All we require now is that the name shall appear on the crate in which fruits are shipped, and in the case of the larger packages, those, of course, shall bear the name of the shipper, and in that, we require that it be removed, when they are repacked.

Senator CLARK. Well, Mr. Fraser, is there any reason why the law should not be applied to these small packages?

Mr. FRASER. Not if you wish. I do not see any gain in it. I do not see any gain, because these small packages are frequently used for display purposes in the store. The commodities come in in larger packages, and they may be put into smaller ones for distribution. Then you are going to require the old name and address to be eliminated and put the new name and address of the packer on tills, if he puts a few peaches and a few pears or some strawberries into it, you are requiring the seller to place his name and address on it.

Senator CLARK. That is not a great hardship, is it?

Mr. FRASER. No; it isn't-but I don't see any gain in it. I don't see any gain in it for the public health.

Senator COPELAND. Well, I have only thought this, in that connection, you take the matter of spray residue, now, on vegetables. Have you had any trouble, Mr. Campbell, in that matter of spray residue on vegetables?

Mr. CAMPBELL. Oh, yes; yes, indeed.

Mr. FRASER. Lots of it.

Senator COPELAND. Well, how do you fix responsibility?

Mr. CAMPBELL. We do that without difficulty, tracing the shipment, finding out who shipped it.

Senator COPELAND. Well, isn't that the reason you want this labeling on here, so you can fix the responsibility?

Mr. CAMPBELL. The requirement to put the name and address of the manufacturer on it is something that was suggested, as I indicated a moment ago, by State officials. We recognized this as a provision for general information possibly to help the consumer. It is a thing that is ordinarily done on most food products as a matter of pride. But the State officials have asked that that be done, in order to make it easier for them to deal with itinerant offenders, where they cannot usually place the responsibility. They may be here today and gone tomorrow.

Senator COPELAND. Well, this, as proposed, is practically the same as it is in our law in New York, isn't it?

Mr. FRASER. It is about the same in New York, in our container law.

Senator CLARK. Your fruit people do an interstate as well as an intrastate business, don't they, Mr. Fraser?

Mr. FRASER. Certainly, and export, with the same package; but the point is this, we have developed grades. We have inspection, at shipping point, and inspection any time in transit, for grade and for container.

We make sales on the certificate which accompanies the shipment, and you may disorganize our business if you insist on this.

Now, furthermore, various States, such as the citrus States, are particularly concerned with citrus crops. They have their State grades. On the Pacific Coast, California has its State grades and its State packages. The boxed apples are not a Federal package at all. There are no Federal laws covering those, but the States have laws that they have put in covering them, and they are required to comply with those laws before they are moved. The Bureau of Agricultural Economics has made permissive grades, but when a shipper marks his package "U.S. Standard No. 1" such immediately come under the Bureau of Agricultural Economics jurisdiction in regard to sale and contract; and furthermore, if the contract is violated, they can levy a penalty; so we are using these grades for business purposes. Senator COPELAND. Except where the public health is involved, Mr. Campbell, there ought to be brought about some agreement in the Department of Agriculture between food and drugs and the Bureau of Agriculture Economics, to get some working agreement on the

matter.

Mr. CAMPBELL. Senator, I do not think there is that confusion, that lack of staff work that might be indicated. Let me point out to you, what we are discussing here has nothing whatever to do with those grades. There is no requirement imposed by the terms of the paragraph which we are considering, that interferes in the slightest with the generally prevailing practice of grading fruit under joint State and Federal supervision, which is controlled by the Bureau of Agricultural Economics. The only requirement imposed here is a declaration of net content, and a statement of the name of the manufacturer. It does not deal with grades at all.

Senator COPELAND. What does Louisiana say to this? You are interested in this, Senator Overton.

Senator OVERTON. Well, Senator, I haven't sufficient information on which to base a definite opinion on that subject.

Senator CLARK. Well, Mr. Campbell, does this provision mean anything.

Mr. CAMPBELL. Yes.

Senator CLARK. Except that they cannot place a half-filled container on the market and call it a full one-for example, they cannot put a pint into a quart, and call it a quart, and move it in interstate commerce. Isn't that the effect of this provision?

Mr. CAMPBELL. That is right, and not only that, but it makes it compulsory that the prospective buyer be given information, by some statement on the label, of the weight or contents.

Senator CLARK. If he wants to sell a container that has less than the standard contents, all he has got to do is to put it on the label. Mr. CAMPBELL. This net weight label of the present law is the so-called "Gould amendment " which was passed in 1916, I believe. It cleared up a practice that was often vicious and abusive. Let me, just as one illustration, show you what happened. In the marketing of olive oil, containers were manufactured that gave the impression that they were gallons, half gallons or quarts. Their dimensions were just slightly smaller than standard containers. To the individual purchaser, they would be distinctly deceptive, but by a disclosure of just what fraction of a quart or of a gallon they were the buyer, of course, was protected.

Senator CLARK. Exactly the same proposition that the Congress legislated against in the very first days of the Republic, against clipping coins. There used to be a time, before they had the milled edges on the dollar, when people would take the coin and clip it, just taking off a very little of it. Nevertheless it abated the circulating medium. In other words, as I understand this provision, it is against selling anything as containing one standard when in fact it contains a different standard.

Senator COPELAND. Haven't we a weights and measures law now? Isn't there such a law? Don't you have to conform to such a law? Mr. FRASER. In practically all the basket packages that are made, the dimensions must first be submitted to the Department of Agriculture and a certificate obtained that they comply with the standard pint, bushel, quart, or whatever it may be, and furthermore the manufacturer's manufacturing number appears on the package. The list of manufacturers is obtainable, with the corresponding numbers, at the Bureau of Agricultural Economics.

Senator CLARK. Well, then, what is the objection to writing on the package exactly the net weight, amount, or inches it contains? Mr. FRASER. No, sir; not weight. We are selling on volume, because the law has put the whole industry on the volume basis, because our commodities vary so much in transit weights that it is much safer. For instance, your bananas lose 2 percent a day, frequently, in transit, and as the Italian said, when he has to sell them by weight, "We make her on the peanut and lose her on the damned banan,' because he cannot get the weight out of it.

Senator COPELAND. Now, if you are required under the weights and measures law to have it stamped on your package, how does this impose any new burden upon you? You are now required under this law to do it.

Mr. FRASER. Under the weights law, we must have that package marked, or we are fined.

Senator COPELAND. Well, then, that is what this is, just simply a repetition of that bill.

Mr. FRASER. This may require weight.

Senator COPELAND. No; it doesn't say that.

Senator HEBERT. It says

66 or ".

Senator COPELAND. "Weight, measure, or count."

Mr. FRASER. And we have measure, count, and weight in some packages.

Senator CLARK. Under this provision, you can sell them under any of the three alternatives, can you not?

Mr. FRASER. We can, but if we use certain packages, we cannot pack them unless they comply with the standards set up by the Department of Agriculture, Bureau of Agricultural Economics. Other sizes are forbidden. We have outlawed them. The industry has gone that far, to make sure the consumer gets full measure. We have been doing that for years. We have been working since 1916. The industry really questions the advisability of the dual jurisdiction on problems which have been in process of development for 20 years.

Senator OVERTON. How does this provision affect strawberries and tomatoes?

Mr. CAMPBELL. It would require a declaration of the manufacturer's name, at least on the crate, perhaps on the smaller box, but certainly on the crate, Senator.

Senator OVERTON. Is that usually done now? Take strawberries. Senator CLARK. You mean fresh strawberries?

Senator OVERTON. Yes.

Mr. CAMPBELL. On the crate, I think it is usually done. This would not change the present practice at all, as I understand it. Senator OVERTON. You mean as to the name and place of business? Mr. CAMPBELL. That is right.

Senator OVERTON. So far as strawberries are concerned?

Mr. CAMPBELL. Yes.

Senator OVERTON. How about tomatoes?

Mr. CAMPBELL. They would be packed in crates, required to bear the name of the manufacturer, the packer, just as they they do

now.

Senator CAMPBELL. Is that done now usually?

Mr. CAMPBELL. Yes.

Senator OVERTON. And there is also a statement "either as to quantity or numerical count or measure?

Mr. CAMPBELL. I don't think there will be any interference at all with existing trade practices on that, so far as the general commerce in these products is concerned.

Senator HEBERT. Isn't that intended to apply mostly to manufactured products?

Mr. CAMPBELL. It is. It is to fabricated foods.