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to health under the conditions of use prescribed in the labeling thereof. Like with railroads, automobiles, and other things, accidents have sometimes resulted in the use of the permanent-wave equipment. If any officer, petty State or prominent Federal, so decided, he could declare the apparatus dangerous, therefore “misbranded", in which case it would be contraband in interstate commerce.

Permanent-wave machines are made and used by the thousands. Women demand the wave which they make. There is no substitute for such machines and experience does not justify such condemnation, but what a chance for blackmailing graft in the hands of a petty official! Let him discover provisions like this, and let him awaken to the fact that page 22, lines 8 to 16, in section 15 (b) empowers him to present evidence to the United States attorney for action! His revenue for “protection” in the liquor traffic having been cut off, what an opportunity to harass and extort blackmail from an ignorant shopowner who is too badly off financially to be able to retain proper legal counsel.

Any beauty shop can advertise its wares or services by radio broadcast. A permanent wave can be considered a product not in interstate commerce therefore the broadcasting that a shop offered a wave under a distinctive name offers another opportunity for the official parasite.

Therefore we suggest that in line 13, page 2 (section 2 (b)), that there be added the words, “ Provided, That the term 'drug' shall not be construed to include substances, preparations, and devices not used in the practice of the healing art.”

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1,003,200,000 ANNUAL BEAUTY-SHOP COSMETIC CONTACTS DO NOT JUSTIFY DRASTIO

REGULATION

There should be no legislation on abnormal reactions. Line 6, on page 5 (sec. 5), condemns a cosmetic which contains any poisonous or deleterious substance in such quantity as may render it injurious to the user.

Allergy was ably discussed by Dr. Brown at the hearing. With 56,000 beauty shops in the United States, each with an average of 3 operators, each operator having an average of 8 operations daily, we obtain the startling total of 1,003,200,000 as the estimated number of patrons served in the United States during the year of 300 business days. At least one cosmetic is used in each operation or contract. Beauty shops, we believe, are more competent to judge the effects of the continuous use of cosmetics over the years than any other profession, for the same patrons are served regularly year after year, sometimes the same family being patrons of one establishment for two and more generations. Beauty shops depend for their very existence on the attractive ness imparted to the patron. It is significant that the appeal for a law to regulate cosmetics did not arise from beauty shops; more significant than ever when it is realized that beauty shops are not unmindful of benefits of governmental regulation, as witnessed by laws regulating beauty culture on the statute books of 30 of the States, put there due to the efforts of the industry itself.

SMALL ENTERPRISES MAY BE CONDEMNED FOR UNAUTHORIZED USE OF THEIR PRODUCTS

- Section 5 (a): On page 7, line 7, change the final period to a comma and add the words “provided such conditions of use are known to the manufacturer.” Our country is a large one. It sometimes happens that a method of use will be discovered and will become customary or usual in a section. Large manufacturers have field men covering their territories. They do not need the protection asked herein because such field men pick up this information. But the small “manufacturer", such as the shop which sells a few of its own goods across State lines and which is thus a manufacturer engaged in interstate commerce within the proposed statute, might not have this information due to no fault of its own, yet he would be violating S. 2800 nevertheless.

Preparations intended for one use are sometimes discovered to have a secondary use, which secondary use gives it a wider range of sale than the primary use. This secondary use may be in fact considered customary or usual and yet the manufacturer know nothing of it.

Prohibition of cosmetics will create new bootlegger Section 5 (b): Strike out the words "prohibited, or” in line 9 of page 7. Mr. Campbell testified at the hearing that he did not know much about cosmetics. Why, then, is Mr. Campbell so anxious to have them included in this bill? If there be some substances which should be prohibited then, let the Congress state the terms of such prohibition.

Bear in mind that not many years ago it was customary for the beauty shop to make its own products. Prohibition will cause the business to go back to that state. Such business is intrastate commerce, over which the Federal Government has no jurisdiction. Suppose the States then follow the Federal Government and outlaw such substances? The beauty shop knows no substitute.. It depends on them for its very livelihood. Patrons will come in and demand results. When they cannot obtain them from one shop they will go elsewhere. When they cannot obtain them at the second shop there will be confusion. and finally a new “bootleg” business will spring up. For every sort of establishment from a drug store to a basement laboratory, not properly equipped or regulated, as is possible only in the case of a properly organized laboratory, will go in business. What will result from their products?

COSMETICS NOT SOLD BY WEIGHT

Section 5 (b): Cosmetics are not sold by weight, measure, or numerical count.. Further, the accuracy required in branding the contents of a package of a powerful drug would not be necessary on a cosmetic even if it were held desirable to include cosmetics under the provisions provided beginning with line 20 of page 7. We suggest the insertion of the words “except in the case of cosmetics”, then change the capital “I” beginning of line 15 to lower case, so that the requirement of the contents of a package of cosmetics shall be excluded.

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DISCRIMINATION AGAINST SMALL ENTERPRISES

Page 8, line 7, demands that substances be in “substantial” quantities inorder to be transported unlabeled for packaging and labeling. This may be construed in such a way as to work a hardship on a small enterprise with one or more units which happen to be across State lines. Strike out the word “ substantial” in line 8.

Section 8 (a) (p. 10, line 19): We suggest that this subsection be stricken out entirely as being impossible of fulfillment with such cosmetics as fall under the definition of “ drugs." Similarly, we suggest the elimination of the fifth provision in subsection “c” (p. 11, line 23) relative to drug plant material, as ambiguous.

INACCURACIES IN

ADVERTISEMENTS NOT NECESSARILY HARMFUL

Section 9 (a): Add the word “ material ” after “ any” in line 9 of page 15.. If an advertisement is misleading but not in any material particular, why cause it to come under the severe provisions of this criminal statute?

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Section 12 (p. 18): We oppose “factory permits.” Our shops would comeunder the general definition of “ factory " under a law of this kind and be discrimination against in favor of the larger enterprise.

ABOLISH MULTIPLE SEIZURE

Section 16 (a) (p. 23, line 9): Seizure should be limited to one except by order of a court. Even a large enterprise is staggered by multiple seizures.. A small establishment which could ill afford the expense of a defense even in. its own territory most certainly would be destroyed by a multiple seizure.

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Section 20 (d) (p. 33, line 5): We suggest the addition of the words “or container or shipping case” after the word “package.” Small enterprises which might export infrequently should not be required to label every retail: item. Label only the outside container " for export” if such unnecessary export. requirement is to be retained.

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SCIENTISTS WITH COSMETICS EXPERIENCE WANTED ON COMMITTEE

Section 22 (b): We favor that two of the appointees on this proposed committee on public health be persons experienced in the cosmetic business or learning. As was disclosed at the hearing, the knowledge of cosmetics, especially as to their effect over long periods of time, is meager among the so-called * higlier professions." Only a few institutes of higher education give any thought to them. We further suggest that no regulation such as provided in line 10 on page 35 should be promulgated unless at least one such appointee who is to protect the cosmetic interests, shall concur therein.

EFFECTIVE DATE

Section 25 (a) (p. 28, line 8): We suggest that this be amended to read, “ This act shall take effect 18 months after the date of approval.” A number of definite dates were suggested during the hearing. Since there is no telling when the act can be approved, the effective date can justly be set only predicated upon the date of approval.

CONCLUSION

We feel the language of the so-called Stephens-Black” bills (S. 2355 and H.R. 6376) more fair to the industry with proper regard to public protection.

MARCH 6, 1934. SENATE COMMERCE COMMITTEE,

United States Senate, Washington, D.C. GENTLEMEN: We desire to file with your committee the following: In connection with the proposed new Food and Drug Act and substitute bills offered, but specifically with reference to the Copeland bill, S. 2000, on which. you are now holding public hearings (although they all carry a similar paragraph to which we are about to refer) we consider a certain part of these bills unfair and unnecessary.

S. 2000, particularly the section to which we have referred, relates to misbranding of foods, etc., section 7 (a) (1), appearing on page 8, which reads as follows:

SEC. 7. A food shall be deemed to be misbranded

(a) (1) If its container is so made, formed, or filled as to mislead the purchaser, or (2) if its contents fall below that standard of fill prescribed by regulations as provided by sections 11 and 22.

The terms of this paragraph are so broad that it leaves entirely to the jurisdiction of the Department of Agriculture the right to interpret or to prosecute in accordance with their interpretation, and as a result of probable constantly changing interpretations we believe that an unfair burden will be placed upon our industry.

This institute embraces in its membership the leading manufacturers of opentype paper drinking cups and round nesting paper food containers, many of whom make a type of nested container that would be likely to come under the Department's rulings if this particular section of the bill were not modified. This type of container being constructed so that it will nest one container into another, its shape requires a recessed bottom so the outer bottom of one container rests on the inner bottom of the lower container, thus permitting ready separation by hand or by machine of a stack of containers. If this recessed bottom were not employed a vacuum would be formed due to the fact that the sides converge and as a result it would be impractical and in some instances impossible to pull the containers apart.

There is nothing whatsoever misleading about this type of container, because it is immediately obvious to anyone looking at the container that it has this slight recession. There is no attempt on the part of the manufacturers of this product to disguise the construction of the container or mislead people by inserting on the inside of the container a false bottom so that a person purchasing any product packed in this style of container would be deceived by not being able to judge properly the correct contents.

Most manufacturers will state that it is impractical to manufacture an absolutely flush bottom nested container because of the problem of separation

mentioned above. Some have endeavored to do it because they felt it would lower production cost, but in any instance with which the writer is familiar, it has been impractical. There are many advantages to a nested container of the type we describe, when compared to other types of containers which serve the same purpose. The nested kind occupy approximately one seventh of the space required by an ordinary round container of a similar size which does not nest, with a consequent savings in freight, handling, storage, and like matters. This type of container has found a very definite market in a comparatively few years, primarily because of the nested feature and the other features we have described. Practically every company in the industry making these containers has invested tremendous amounts in machinery and equipment for the manufacture of this style container.

We believe the proposed bill contemplates primarily the regulation of the construction of containers which are obviously and purposely misleading but we fear the present broad terms of the particular paragraph referred to may be interpreted to include containers of the type we have described, which would be disastrous to our entire industry and those whom it serves.

We are of the opinion that it is not the desire of the sponsors of these bills to unduly injure concerns who are manufacturing a legitimate product that was not originally contemplated as coming under the scope of this type of legislation.

We also feel the particular paragraph in question would serve the purpose for which it was designed and at the same time not bring disaster to the manufacturers of this type of container if the clause were changed to read somewhat as follows:

SEC. 7. A food shall be deemed to be misbranded

(a) (1) If its container is so made, formed, or filled as to intentionally (or willfully) mislead the purchaser, or (2) if its contents fall below the standard of fill prescribed by regulations as provided by sections 11 and 22.

We ask for your earnest consideration of this matter, and if there is any further information or practical illustration or demonstration of the points that we are trying to bring out that you desire, we will be glad to furnish them. Very truly yours,

CUP & CONTAINER INSTITUTE, INC.,
GRANVILLE P. ROGERS, Executive Director.

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MARCH 7, 1934. Hon. HUBERT D. STEPHENS,

United States Senate, Washington, D.C. DEAR SIR: Our attention has been called to certain sections of the proposed Copeland bill S. 2000, relating to the Food and Drug Act, which might conceivably affect some of the products that we manufacture. The particular section that we have reference to refers to the misbranding of foods and reads as follows:

SEC. 7. A food shall be deemed to be misbranded

(a) (1) If its container is so made, formed, or filled as to mislead the purchaser, or (2) if its contents fall below that standard of fill precribed by regulations as provided by sections 11 and 22."

The part of this section that we are particularly interested in is that relating to the formation of the container. We realize that a bill of this type canhot hope to specifically consider every type of package and to specifically mention the types that are considered misleading. On the other hand, however, we feel that in its present form this section is so broad that it is liable to work a harmful and serious injustice upon manufacturers of many types of containers whose products it was not originally contemplated to outlaw.

According to our understanding, the Department of Agriculture would be called upon to interpret the provisions of this bill and would in the course of events bring action against users of such containers or packages that they considered misleading. We cannot help but feel that the all-inclusive wording of this section would constantly lead to harassing actions, causing us considerable expense and difficulties with customers, and that this would be more burdensome in the event that changes in personnel were made in the Department.

One of the very important divisions of our business is the manufacture of nested paper containers used for the packaging of various foods and for the carry-out from retail stores of such articles as ice cream, hot coffee, cold

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drinks, etc. These containers or packages are manufactured in various shapes and range in size from a 2-ounce capacity to a 10-pound capacity. In order to properly manufacture such a nested paper container it is necessary to utilize an open-recessed bottom so that the outside bottom of one container rests on the inside bottom of the container immediately below it in the stack. In each instance this bottom is not recessed any further than is actually required for the particular size or shape of container in question. If the container were not provided with such a bottom it would be impossible to separate the containers by hand or on an automatic filling machine due to the fact that the side walls of the container would converge and form a vacuum that in turn would prevent separation. The recessed bottom being open is immediately obvious and consequently not misleading under any circumstances. It is not as though we were manufacturing a package that had inserted inside of the container a false bottom purely with the intent to mislead or deceive.

There are many advantages of a nested paper container when compared to other types of containers which serve the same purpose. They occupy approximately one seventh of the space required by round containers of a similar size, with consequently tremendous savings in freight, handling, storage, and similar expenses. Because they are manufactured from a blank instead of being spirally wound, they can be much more attractively designed and printed. Primarily, because of these features they have found a very definite large market in the comparatively few years that they have been manufactured and needless to say our company, as well as other companies in the industry, have invested tremendous amounts in equipment for the manufacture of same.

If by any chance our containers would be construed as misleading, which they are not, we could not manufacture any type of nested paper container that did not have such a recessed bottom. When we first contemplated the manufacture of such containers and at various other times in the past, we attempted to devise a nested paper container with a flush bottom. Obviously, such a container would require considerably less material and represent a very substantial saving in the course of a year. Every effort that we have made to manufacture such a container has failed because we could not overcome the difficulty of separation which would make the container impractical in actual usage.

In order that you may visualize exactly what we are referring to, we are taking the liberty of sending you under separate cover a catalog showing the various products that we manufacture. We refer you to pages 56 to 78, inclusive, which aptly illustrate the formation of the container, and some of the products for which it is used. Pages 75 to 78, inclusive, illustrate the nesting features referred to above. Page 83 illustrates one of the types of ice-cream filling machines that are frequently used for the automatic packaging of these containers. If you would actually like to see the containers referred to herein, we would consider it a privilege to send you a complete sample assortment.

We are certain that it is not the desire of the sponsors of this bill to unduly injure concerns that are manufacturing products that were not originally contemplated as coming under the scope of the bill. We believe that the particular paragraph in question would serve the purpose for which it was designed and at the same time not harm manufacturers like ourselves, if the clause were changed to read as follows:

“ SEC. 7. A food shall be deemed to be misbranded (a) (1) If its container is so made, formed, or filled as to intentionally (or willfully) mislead the purchaser, or (2) if its contents fall below the standard of fill prescribed by regulations as provided by sections 11 and 22."

Packages manufactured primarily for the purpose of misleading or deceiving would be immediately obvious.

We dislike burdening you with our difficulties, but you can readily understand that this is a matter of grave concern and serious importance to us.

We sincerely trust that you will give this matter your earnest consideration and assure you that we will be only too happy to furnish any further information or data that you might desire. Very truly yours,

LILY TULIP CUP CORPORATION,

WALTER J. BERGMAN, Vice President. 4307634

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