Senator HEBERT. Then what would be the objection to leaving the supervision of the sale of fresh fruits to the Bureau of Agricultural Economics the way it is now?

Mr. CAMPBELL. That is the Bureau that enforces the Standard Container Act. I think that their jurisdiction, under the terms of

that law, which I once knew but have forgotten, relates only to the 3 dimensions of containers. It makes it an offense for a manu

facturer to produce the containers or for someone to employ containers in the marketing of food that do not comply with these particular dimensions. If they were to use a hamper—that is, one of those cylindrical packages with a small base and a flared topwhich did not correspond to the dimensions established by that Bureau in its standards, then it is an offense to either manufacture or to use that container. Is that it, in substance, Mr. Fraser ?

Mr. FRASER. I did not hear. You said what, about the basket, and so on?

Mr. CAMPBELL. I said, if it did not comply with the specifications drawn up by that Bureau in its standards, for that particular size, if it were smaller in dimensions, for instance, then it would be an offense to manufacture that package or to use that package.

Mr. FRASER. Any person using it is subject to a fine.

Senator HEBERT. That is one thing, to fix the standard of the container, but this is something different that is provided here, as I understand it.

Senator COPELAND. Yes.

Mr. FRASER. Well, sir, in these particular packages, we are using measures, we must fill them. We fill the package for shipment, so we have drifted to the use of volume in a large measure, in the case of packaged goods.

Senator CLARK. Isn't this true, that there is no absolute rule either regarding volume, or weight, or otherwise? For instance, I recall when I was a little boy, quite an industry grew up in my State, producing barite, which is a white mineral, the only known use of which was to mix it with sugar for the purpose of increasing the weight of the sugar in a package, without increasing the sugar content.

Mr. FRASER. Well, may I go a little further, Senator? For instance, for apples, they run from 36 pounds to 52 pounds to the bushel, depending on the variety. Now, we have got so many States that started to put in the weight of a bushel of applesfor instance, Illinois has just made it 47, and we are fighting it in the courts today, as to whether this container act shall apply or not. The solicitor of the Department of Agriculture has given an opinion that this is effective interstate and intrastate and all State laws in violation of it are void. It would seem to be unnecessary to disrupt industry already established in this line of package.

Senator CLARK. You mean the manufacture of containers?

Mr. FRASER. No; the user of the container not the manufacturera package which won't meet the requirement of the Department of Agriculture as to its capacity may bring a penalty on any person using such package, it is a violation and he is subject to a fine.

Senator HEBERT. Of course, that provision does not apply to manufactured foods?

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Mr. FRASER. Oh, no, no. I am only talking about fruits and

I vegetables.

Senator HEBERT. That is why I say that the provision in this bill is intended to apply to manufactured foods and does not seem to me to apply to fresh fruits.

Mr. FRASER. That is my only reason, Senator, for asking that since we are all under the operation of the law, that we be left under one jurisdiction.

Senator HEBERT. In other words, you are in a position where you cannot violate the law because you cannot get the containers ?

Mr. FRASER. Yes, sir.
Senator HEBERT. That will prevent you from violating the law?

Mr. FRASER. We cannot violate the law. We maybe would violate it if we used one that was not branded.

Senator HEBERT. But you would have to manufacture it yourself, or else get somebody to manufacture it specially for you?

Mr. FRASER. Yes; but if we use a barrel, for instance, which is not branded Minimum volume, U.S. standard, 3 bushels ”_some of our men were fined $100 for that, quite recently.

Senator CLARK. Mr. Fraser, if that is the condition under the existing law, I still do not see where the hardship is in requiring the man selling the package to put right on the package the name and address of the man who is responsible for it, who started it in commerce, and the contents of the package.

Mr. FRASER. The volume. He must mark on it the volume.

Senator CLARK. Then where is the hardship in this provision, if you are going to sell fair weights and measures, and fair volume, taking it by any standard you please, where is the hardship in requiring it to be written on the package?

Mr. FRASER. Not any, but leave us under one jurisdiction. Leave us under one jurisdiction.

Senator COPELAND. Of course, Mr. Fraser, there is another side to it, that this is a health bill. It might happen that somebody is sent up some cauliflower from down South somewhere, where there was a lot of spray residue on it, arsenic; it might be very important to trace that.

Senator CLARK. Yes; it would be important to trace it, Senator, if I may interrupt, even though the same container previously contained tomatoes or something else from some other company, and they were using the same container over again—just as important from the standpoint of health to have the last shipper's name written on the package as it was to have the first shipper's name written on the package.

Mr. CAMPBELL. I can assure you, Mr. Chairman, there is no conflict of jurisdiction here. In enforcing this law there is no interest shown in the standard containers act. That law is enforced by the Bureau of Agricultural Economics, and there has never been any interference with them. We are not concerned or interested in that, but let me point this out, too; that law can be violated by the use of a standard container, if the containers are not full, and there is nothing in the Standard Container Act requiring it to be full.

Now, it is possible to take a gallon can and fill it half full of olive oil and sell it for a gallon, if you do not declare on the label that it contains only a half gallon. It is perfectly possible to take a hamper that will contain a bushel, and sell it for a bushel, if it is not declared on the label that it contains only 3 pecks. This requirement is now in effect in the present law. There would be no more hardship visited upon this industry than exists at the present moment, and I do not understand that that is a hardship at all. Shall I pass on to the next one?

The CHAIRMAN. Yes; please.

Mr. CAMPBELL. That is paragraph (c) on page 8, which authorizes the Secretary to promulgate regulations exempting manufacturers from labeling packages, where the goods have been prepared in one plant and distributed to another plant for labeling, and where this delivery goes into interstate commerce.

By administrative action now we are not requiring labeling under such conditions to be done. Canned goods may be produced by one concern in various plants, perhaps where the commodity is most prevalent and it is most economical to do so, and may be shipped to a common plant for labeling, where adequate facilities would exist for that purpose. There is no disposition to interfere with that practice.

Senator COPELAND. Is there any reason why you should not say the Secretary shall promulgate regulations?

Mr. CAMPBELL. Do you want to relieve the Department altogether from any attention to bad practices that may develop after the goods have gone through a labeling plant? This particular paragraph authorizes the imposition of certain specific requirements, that is that no violative label be used after the goods have gone to the plant.

Senator COPELAND. You have acquired jurisdiction under those circumstances, because they have gone into interstate commerce.

Mr. CAMPBELL. I know it has been suggested there that the Secretary be required to promulgate regulations. I do not see that that materially modifies the provision.

Senator CLARK. It is about as long.
Mr. CAMPBELL. It is about as long. You are right, Senator.
Senator CLARK. You can do the same thing with regulation.
Mr. CAMPBELL. Exactly.

Senator COPELAND. Now, there is no controversy anywhere until we get over to where?

Mr. CAMPBELL. Let me take up section 7, paragraph (a), which declares a food product to be misbranded"if its container is so made, formed, or filled as to mislead the purchaser."

That is nothing but the so-called “slack-pack bill.” That has been recommended by the Department since 1914. It has passed the House on three different occasions, but it has never been considered by the Senate other than for brief hearings.

The need for that paragraph is here illustrated by these exhibits, Mr. Chairman. Here is a package of spice in a tin container, “Pure black pepper”, with a perforated top and as it probably will be used in the household. There is no opportunity to see the extent to which that is slack-packed, but this line drawn across the face of the label on the package, slightly above the middle portion, between the bottom and the top of the can, indicates the fill that is found there. In other words, the package is not more than three fifths full of pepper.

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This is not an extreme case. We have had them where there was not more than one fourth the fill of the can.

Senator HEBERT. Doesn't that show the weight?

Mr. CAMPBELL. That does show the weight, unless the weight is so small that it is exempted under the provisions of the net-weight amendment, half-ounce quantities. But I submit, Senator, even in that case is not informative to the consumer. She does not know what the specific gravity of pepper would be. I do not know myself what would be the bulk of 2 or 3 or 5 ounces of pepper.

Senator CLARK. As as matter of fact, most of the consumers buy on the basis of the size of the package!

Mr. CAMPBELL. Exactly.
Senator HEBERT. Does that conform with your requirements ?
Mr. CAMPBELL. We can make no requirements on this now.

Senator HERERT. Would that conform with the present requirements of this bill?

Mr. CAMPBELL. Not at all. There is no excuse for such slack packing. It is done for the purpose only of deception.

Here is another package of some cheese. These are put up in small sectors, and you can see from this package, which is perhaps an inch thick and circular, that you would have an impression that on opening the lid you would find two or three layers of cheese of sectors as thick as this one.

Senator HEBERT. I thought they were cheese, myself.
Mr. CAMPBELL. Exactly.
Senator CLARK. I have been stung on that, myself.

Mr. CAMPBELL. Exactly. Here is a cross-section of what you will find there. Exposed in that fashion you can see the false layers in the bottom of the package. This particular package originally did have 3 layers of cheese when the false bottoms were not employed. Following that 1 false bottom was used and 2 layers appeared, and finally 2 false bottoms were used and only 1 layer appeared. I don't know where it will end if the practice continues progressively.

Senator COPELAND. Mr. Campbell, have you any objection to adding at the end of this subsection:

In construing and applying this paragraph, as to the fill of a container, reasonable variations and tolerances shall be permitted, which allow for subsequent shrinkage or expansion of the food and for discrepancies due to a natural or other cause beyond reasonable control in good commercial practice.

Mr. CAMPBELL. Suppose you analyze that language. That is in the so-called “Dunn bill”, I think.

Senator COPELAND. That is in line 2, 2858. Senator CLARK. Will you read that over again, Senator? Senator COPELAND (reading): In construing and applying this paragraph, as to the fill of a container, reasonable variations and tolerances shall be permitted, which allow for subsequent shrinkage or expansion of the food and for disprepancies due to a natural or other cause beyond reasonable control in good commercial practice.

Mr. CAMPBELL. There can be no complaint at all with an indication of the purpose of Congress to have a reasonable, sane, and fair administration of the act. I doubt whether the courts would entertain a proposal advanced by the Department to prosecute a defendant unless it could give evidence of the fact that it had observed that standard itself.

This language not only provides for the promulgation of general tolerances, and perhaps exemptions, as is shown under the net weight amendment of the act, but it goes further and insists upon reasonable variations for discrepancies.

Discrepancies of what character? Due to any cause?
Senator CLARK. Where are you reading now, Mr. Campbell ?
Mr. CAMPBELL. I am reading from page 6, Senator.
Senator CLARK. That is 2858 ?

Mr. CAMPBELL. This is 2858. Due to discrepancies, to any cause beyond reasonable control in good commercial practice.

In the first place what is commercial practice? What is good commercial practice? What constitutes control in good commercial practice?

The objection that I have to that is the one I expressed to some other proposals for the introduction, Senator, of qualifying terms which will multiply lawsuits indefinitely. Now there can be, in my judgment, no conviction of the manufacturer where the shrinkage is due to causes which the manufacturer cannot control. There would be no disposition to attempt that sort of thing.

I think the illustration advanced in support of the modified language was the preparation of breakfast foods which, in the course of handling, would be shaken down until they did not fill the package. Here is a package of breakfast food. Here are others. These, by the way, were just picked up on the market and were opened here. Í don't know whether all of them have been opened yet. There is one that is not opened. The others were opened just a few moments ago. All of them show a very great cavity between the food product and the top of the container. Here is one where the air space is perhaps 30 percent of the entire package, 25 certainly. I recognize that there will be a shrinkage in such products from repeated handling. I think some of it certainly could have been taken care of before the product left the factory in the course of packing.

Senator HEBERT. Is the weight shown on those packages?
Mr. CAVERS. It is.
Senator HEBERT. How does that conform?
Mr. CAMPBELL. Net weight, 13 ounces.
Senator HEBERT. How does that conform with the requirements ?

Mr. CAMPBELL. Undoubtedly that will contain 13 ounces, and in all probabilities it will be more than 13 ounces.

Senator HEBERT. That comes in the same category as the box of spice that you have just illustrated ?

Mr. CAMPBELL. Exactly.

Senator CLARK. In other words, it would depend, perhaps, the salability of it would depend on the size of the package ?

Mr. CAMPBELL. That is right.
Senator COPELAND. Do you want to leave it as it is, Mr. Campbell ?

Mr. CAMPBELL. Undoubtedly, Senator. I would not know how much of a tolerance to make under the proposed change, and I don't know how the courts could determine that. I would not know how to enforce it.

Senator COPELAND. Now we come to these misbranded drugs, the names of the drugs, and so forth. We might pass that over, perhaps.

Mr. CAMPBELL. Now, did you notice paragraph (e), Senator?

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