Dr. ALSBERG. No: I don't think →).
Mr. LANNEN. NOW, uppo-e nat o

ake a can of sirup setting on a shelf. containing 16 ounces vorpois, and another can of irup, containing 14 ounces vorpo. which can would be the argest can?

Ds. ALSBERG. I do not quite get the point. I do not quite get the oint.

Mr. LANNEN. Well, the point. if you have two cans, of ientically the same markings. of irip on a shelf, one can holding 6 ounces avoirdupois, and the other an holding 14 ounces avoirpois, the 16-ounce can would ook e larger, would it not? Dr. ALSBERG. If they were packed by Mr. LANNEN. Then the ultimate

the same people?

lt of that situation would be you would deceive the purchaser of that smaller can of sirup ring to this bill.

Cr. ALSBERG. I do not see how.

Ar. LANNEN. Because you could compel them to use cans of dift-izes.

P

ALSBERG. Surely, and they would ontain different quantities. LANNEN. Now, that

ALSBERG. And they would contain different quantities.

LANNEN. Now, these two cans of sirup I am talking about, nid contain different quantities. vould they not?

ALBERG. Surely: and both would be filled.

ANNEN. They would both be filled; yes; but to the ordinary er coming in the 14-ounce can tanding by itself would appear e-ame size as the 16 ounce can is: that is true?

BERG. That might be, but I will say. Mr. Lannen, that I nk it will. It is a very common practice in the packing of goods, olive oil, for instance, to use a can which is slightly ize than the quart or gallon. It may be labeled correctly ntents, as inconspicuously as the manufacturer dares, say when it is intended to sell it in competition with the 32a. which is a full quart. This is a practice sometimes used

L

any doubt but that the fifth-gallon whisky bottle was teceive the purchaser as a quart. I don't think it would ng. Mr. Lannen, if this bill covers such practices, although nk it does. If it does. I think it is a better bill than I I do not think it covers such cases.

EN. Well, I do not think the trade understands exactly effect of this bill will be, and, in my opinion, it will re ..ng products in half pounds, pounds, two pounds, and

" inits.

. I don't see how it would do that, but you are aff
im not. You may be right.

. Now, then, Doctor, we will take this packa
package of candy happens to be labeled t
That is about the size of a pound box of cand

PE. That is about the size of a one-pound o
Now, then, supposes this box, which
ta, and we will say that a box of my

set alongside of this box, which contained one pound, how large a box would that be?

Dr. ALSBERG. Well, it would be a great deal larger. I do not know whether it would be twice as large.

Mr. LANNEN. Under this law it would be deceptive?

Dr. ALSBERG. No.

Mr. LANNEN. Would this package be deceptive, or the larger? Dr. ALSBERG. I don't think it would be deceptive, because everybody knows that marshmallows weigh less than chocolates.

Mr. LANNEN. Well, now then, if it contained fine candy-let me put it this way-the size of a package containing a pound of candy depends upon the composition of the candy?

Dr. ALSBERG. Yes.

Mr. LANNEN. Isn't that true?

Dr. ALSBERG. Yes.

Mr. LANNEN. So that from the size of the box you are not justified in saying that a box of candy is deceptive because it looks larger than another box of candy, both containing a pound; isn't that true? Mr. ANDERSON. May I ask you a question, Mr. Lannen?

Mr. LANNEN. Yes, sir.

Mr. ANDERSON. Well, nothing of that sort should be permitted. You ought to have special boxes in which there should be

Mr. LANNEN (interposing). I am not contending for any fraud, but I am contending for the rights of my people, to keep them out of jail for innocent things, which are perfectly innocent within themselves. I know how a law of this kind will be enforced because I have tried probably as many food cases under the national food law as any attorney in the country.

The CHAIRMAN. I would suggest that to-day be set aside for those who desire to leave the city to-day. We will hear Mr. Lannen to

morrow.

We have a number here to-day who are from out of town, who would like to get away this evening. In order to accommodate them, if it is agreeable to Mr. Lannen, we will hear him to-morrow.

Mr. LANNEN. I expect to be heard on this to-morrow, and I would like to ask the doctor one more question, if the bill pending in the Senate, known as the Calder bill, 3011, were passed, if it would not protect all of these articles of food under the national food bill until they reached the consumer?

Dr. ALSBERG. Well, there is no provision in the Calder bill for taking care of any of the things this bill takes care of.

Mr. LANNEN. I know, but assume your bill passes as drawn and the Calder bill also passes?

Dr. ALSBERG. Yes.

Mr. LANNEN. If the Calder bill passes, then the national food law would affect these packages and protect them right down to the purchaser. That is true, is it not?

Dr. ALSBERG. If it is held constitutional, I don't know.
The CHAIRMAN. Are you through, Dr. Alsberg?

Dr. ALSBERG. Yes, sir; unless you desire to ask some questions. The CHAIRMAN. Thank you, Doctor. We will first hear from outof-town witnesses. Mr. Drake we shall be pleased to hear from you.

STATEMENT OF MR. FRED. R. DRAKE, REPRESENTING THE NATIONAL WHOLESALE GROCERS' ASSOCIATION OF THE UNITED STATES.

Mr. DRAKE, I am a wholesale grocer of the firm of Drake & Co., and I am chairman of the purè food committee of the National Wholesale Grocers' Association. This matter is of interest to all of the members of the Wholesale Grocers' Association. We simply would like to get before the committee the fact that we are favorable to this bill, but as Dr. Alsberg has stated, we would like to see the bill made mandatory as to the tolerances, making the word "will" read "shall." We will submit a brief to the committee. Mr. New man, assistant to our president, will submit a brief, and we would like to have the word "may" read "shall," in order that it may be mandatory instead of optional.

We would like, also, to have the legislation, when it is passed. effective with regard to goods on hand, in the hands of merchants, and the labels. We are favorable to the bill, and Mr. Newman will submit our brief, which will take three or four minutes to read, if you gentlemen would like to hear it read.

Mr. MCKINLEY. How would it be to put it in the record. You are in favor of changing the word "may," in line 9 of page 2, to the word "shall"?

The CHAIRMAN. Can you state the attitude of the merchants toward this bill?

Mr. DRAKE. The attitude of the merchants is an entire agreement. so far as our opinion goes, with regard to the Department of Agri culture, and the Bureau of Chemistry, and I think there is a dispo sition to back this among our members; that we are in favor of this, and that we are simply asking the committee and the doctor who is interested in this bill, to take cognizance of our wishes with regard to these two small items, making it mandatory.

The CHAIRMAN. Then you feel that it is fair to assume that the merchants in general are in accord with it?

Mr. DRAKE. I am here representing the National Wholesale Gro

cers.

The CHAIRMAN. I had reference to the retail merchants, Mr. DRAKE. Well, I do not represent the retail merchants. The CHAIRMAN. But you come in frequent contact with thean? Mr. DRAKE. Yes, sir: but all of us guarantee the articles in the invoices comply with the National and State pure food lave and we do not wish to pass on to our customers goods that are decepti o to the ultimate consumer.

The CHAIRMAN. Has your association had occasion to call on the Federal Trade Commission affecting matters covered by this bu! Mr. DRAKE. I can't say with reference to this bill. With references to deceptive trade practices, but not along this line so far as I am cognizant: but where they have been practicing deception by sy articles which were less than their known value, that we ha e fazen up with the Federal Trade Commission.

Mr. PURNELL. Then you state that you told Like to se* 1.,2 bill pass Congress, not only to protect yourselses as x56ren • to cers, but also in the interest and the rights of the nitimate oz.

145576 19

Mr. DRAKE. Absolutely, sir. We want to see the goods get to the consumer at the least possible cost, and there is a lot of waste here in these slack-filled packages, and it is deception besides.

Mr. PURNELL. Well, the National Wholesale Grocers' Association. then, does not approve of this deception?

Mr. DRAKE. No, sir.

Mr. PURNELL. You say they have been forced, practically, into it as a matter of self-preservation?

Mr. DRAKE. Well, very often, sir, the manufacturer comes to the jobber after having gone to the retailer, and asks the jobber to take on an article which he already has orders for from the retailer, you see, and in our function as a jobber we very often take on a package of that kind which the manufacturer guarantees to us.

Mr. PURNELL. Do you know how long advance notice would be required by the manufacturers under the packages and labels they now have?

Mr. DRAKE. Well, in my own case, take, for instance, the salmon. We are sending our salmon labels to the Pacific Coast now for dispatch to Alaska next spring. Consequently we buy our labels in advance. We have put in orders now for labels for the 1921 pack.

Mr. PURNELL. Many concerns have hundreds, or thousands of dollars invested in containers and in labels; do you think we ought to protect those men who have been before, or will be in the future, guilty of fraud and deception?

Mr. DRAKE. Not guilty of fraud and deception, but I think regarding the labels that probably would be a factor to be considered in connection with this bill, and that it could probably be taken care of in a similar way that it was met in 1906 when there were hearings at that time in New York before the three Secretaries, Agriculture, Treasury, and Commerce, and at that time those three departments felt that it was equitable to allow a short time for the jobbers and manufacturers to take care of their labels so as not to produce an economical waste. In 1913 when the net-weight amendment was under consideration, the same tolerances were given to the Department, which amounted to, I think, 18 months in that case. I should say that 18 months would cover our case with regard to labels; because as soon as this law passes the manufacturer of any of these labels which are not being used would be stopped. They have got a lot of these goods on hand, and there are goods in the hands of retailers, which we think are not illegal now, and should be allowed to be sold by the innocent retailers.

Mr. JACOWAY. It is the innocent person that you want to protect. and not the person that is guilty of deception?

Mr. DRAKE. Yes, sir.

Mr. JACOWAY. That is the reason you are in favor of this bill?

Mr. DRAKE. Yes, sir; not to protect deceptive trade; but because we do not believe in deception to the retail customer.

Mr. JACOWAY. But the deception that is being practiced is respon sible for having forced some of the wholesalers to engage in this? Mr. DRAKE. Yes, sir; I presume that is true.

Mr. JACOWAY. And you think, if this bill is passed, it will make all come to the same law, that is the reason you are in favor of it; that is your object?

Mr. DRAKE. That is my idea; yes, sir.

The CHAIRMAN. We thank you, Mr. Drake. The amendments which you propose will be given consideration.

We will now hear Mr. Newman.

STATEMENT BY MR. JOHN B. NEWMAN, ASSISTANT TO THE PRESIDENT OF THE NATIONAL WHOLESALE GROCERS' ASSOCIATION.

The CHAIRMAN. Mr. Newman, will you give your full name.
Mr. NEWMAN. John B. Newman.

The CHAIRMAN. What is your business?

Mr. NEWMAN. Up to last week, I was food commissioner for the State of Illinois, and Dr. Alsberg referred to me in that capacity. Last week I resigned and went to work for the National Wholesale Grocers' Association.

Now, in further verification of what Mr. Drake said about the competition by the people who enter this unfair competition, this will eliminate their trade when the retailers will not engage in this kind of practice. It would establish a maximum, and I think that in view of that that this bill should say in section 4, right after the word, "filled," it should-in line 7, page 2-it should read, “if in package form, and irrespective of whether or not the quantity of the contents be plainly and conspicuously marked on the outside of the package in terms of weight, measure, or numerical count, as provided in the preceding paragraph, the package to be filled with the food it purports to contain "; and now insert, "consistent with good commercial practice."

Now, that is good commercial practice. That is not fair commercial practice, nor poor commercial practice.

Mr. PURNELL. Who is going to determine?

Mr. NEWMAN. Dr. Alsberg would be the last one on that, and he and the department which he represents, have a wonderful lot of records on it, and have the means of making investigations, and they are very far on that proposition now.

Mr. CARAWAY. How would it be to put in this: "As determined by Agricultural Department"?

Mr. NEWMAN. Well, I think that should be quite good enough, good commercial practice.

The CHAIRMAN. Who would determine what would be good commercial practice?

Mr. NEWMAN. Well, I think the Department of Agriculture.

Dr. ALSBERG. It would be a matter for the courts to determine, what good commercial practice was, and it would be up to the department to express an opinion as to such and such a process of a manufacturer, but the courts would have to determine as to the question of fact. In that way it wouldn't be much different from any other issue of fact.

Mr. JACOWAY. But it would be a long way of getting relief if it had to be taken through the courts.

Dr. ALSBERG. There will be very few cases that will have to be taken to the courts, I think.