In the case of confectionery :

If it contain terra alba, barytes, talc, chrome yellow, or other mineral substance or poisonous color or flavor or other ingredient deleterious or detrimental to health, or any vinous, malt, or spirituous liquor or compound or harcotic drug.

In the case of food:

First. If any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength.

Second. If any substance has been substituted wholly or in part for the article.

Third. If any valuable constituent of the article has been wholly or in part abstracted.

Fourth. If it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed.

Fifth. If it contain any added poisonous or other added deleterious ingredient which may render such article injurious to health: Provided, That when in the preparation of food products for shipment they are preserved by any external application applied in such manner that the preservative is necessarily removed mechanically or by maceration in water or otherwise, and directions for the removal of said preservative shall be printed on the covering or the package, the provisions of this act shall be construed as applying only when said products are ready for consumption.

Sixth. If it consists in whole or in part of a filthy, deconfposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a diseased animal or one that has died otherwise than by slaughter.

SEC. 8. That the term "misbranded" as used herein shall apply to all drugs or articles of food or articles which enter into the composition of food the package or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular, and to any food or drug product which is falsely branded as to the State, Territory, or country in which it is manufactured or produced.

That for the purposes of this act an article shall also be deemed to be misbranded:

In case of drugs:

First. If it be an imitation of or offered for sale under the name of another article.

Second. If the contents of the package as originally put up shall have been renfoved in whole or in part and other contents shall have been placed in such package, or if the package fail to bear a statement on the label of the quantity or proportion of any alcohol, morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetanilide, or any derivative or preparation of any such substances contained therein.

Third. If its package or label shall bear or contain any statement, design, or device regarding the curative or therapeutic effect of such article or any of the ingredients or substances contained therein which is false and fraudulent. In the case of food:

First. If it be an imitation of or offered for sale under the distinctive name of another article.

Second. If it be labeled or branded so as to deceive or mislead the purchaser or purport to be a foreign product when not so, or if the contents of the package as originally put up shall have been removed in whole or in part and other contents shall have been placed in such package, or if it fail to bear a statement on the label of the quantity or proportion of any morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetanilide, or any derivative or preparation of any of such substances contained therein.

Third. If in package form the quantity of the contents be not plainly and conspicuously marked on the outside of the package in terms of weight, measure, or numerical count: Provided, however, That reasonable variations shall be permitted, and tolerances and also exemptions as to small packages shall be established by rules and regulations made in accordance with the provisions of section 3 of this act.

1 The act of March 3, 1913, provides that no penalty of fine, imprisonment, or confiscation shall be enforced for any violation of its provisions as to domestic products prepared or foreign products imported prior to 18 months after its passage.

Fourth. If the package containing it or its label shall bear any statement, design, or device regarding the ingredients or the substances contained therein which statement, design, or device shall be false or misleading in any particular: Provided, That an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases:

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First. In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, if the name be accompanied on the same label or brand with a statement of the place where said article has been manufactured or produced. Second. In the case of articles labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends, and the word compound," "imitation," or "blend," as the case may be, is plainly stated on the package in which it is offered for sale: Provided, That the term blend as used herein shall be construed to mean a mixture of like substances, not excluding harmless coloring or flavoring ingredients used for the purpose of coloring and flavoring only: And provided further, That nothing in this act shall be construed as requiring or compelling proprietors or manufacturers of proprietary foods which contain no unwholesome added ingedient to disclose their trade formulas, except in so far as the provisions of this act may require to secure freedom from adulteration or misbranding.

SEC. 9. That no dealer shall be prosecuted under the provisions of this act when he can establish a guaranty signed by the wholesaler, jobber, manufacturer, or other party residing in the United States, from whom he purchases such articles, to the effect that the same is not adulterated or misbranded within the meaning of this act designating it. Said guaranty, to afford protection, shall contain the name and address of the party making the sale of such articles to such dealer, and in such case said party or parties shall be amenable to the prosecutions, fines and other penalties which would attach, in due course, to the dealer under the provisions of this act.

SEC. 10. That any article of food, drug, or liquor that is adulterated or misbranded within the meaning of this act, and is being transported from one State, Territory, District, or insular possession to another for sale, or, having been transported, remains unloaded, unsold, or in original unbroken packages, or if it be sold or offered for sale in the District of Columbia or the Territories, or insular possessions of the United States, or if it be imported from a foreign country for sale, or if it is intended for export to a foreign country, shall be liable to be proceeded against in any district court of the United States within the district where the same is found, and seized for confiscation by a process of libel for condemnation. And if such article is condemned as being adulterated or misbranded, or of a poisonous or deleterious character, within the meaning of this act, the same shall be disposed of by destruction or sale, as the said court may direct, and the proceeds thereof, if sold, less the legal costs and charges, shall be paid into the Treasury of the United States, but such goods shall not be sold in any jurisdiction contrary to the provisions of this Act or the laws of that jurisdiction: Provided, however, That upon the payment of the costs of such libel proceedings and the execution and delivery of a good and sufficient bond to the effect that such articles shall not be sold or otherwise disposed of contrary to the provisions of this act, or the laws of any State, Territory, District, or insular possessions, the court may by order direct that such articles be delivered to the owner thereof. The proceedings of such libel 'cases shall conform, as near as may be, to the proceedings in admiralty, except that either party may demand trial by jury of any issue of fact joined in any such case, and all such proceedings shall be at the suit of and in the name of the United States.

SEC. 11. The Secretary of the Treasury shall deliver to the Secretary of Agriculture, upon his request from time to time, samples of foods and drugs which are being imported into the United States or offered for import, giving notice thereof to the owner or consignee, who may appear before the Secretary of Agriculture, and have the right to introduce testimony, and if it appear from the examination of such samples that any article of food or drug offered to be imported into the United States is adulterated or misbranded within the meaning of this act, or is otherwise dangerous to the health of the people of the United States, or is of a kind forbidden entry into, or forbidden to be sold or restricted in sale in the country in which it is made or from which it is exported, or is otherwise falsely labeled in any respect, the said article shall be

refused admission, and the Secretary of the Treasury shall refuse delivery to the consignee and shall cause the destruction of any goods refused delivery which shall not be exported by the consignee within three months from the date of notice of such refusal under such regulations as the Secretary of the Treasury may prescribe: Provided, That the Secretary of the Treasury may deliver to the consignee such goods pending examination and decision in the matter on execution of a penal bond for the amount of the full invoice value of such goods, together with the duty thereon, and on refusal to return such goods for any cause to the custody of the Secretary of the Treasury, when demanded, for the purpose of excluding them from the country, or for any other purpose, said consignee shall forfeit the full amount of the bond: And provided further, That all charges for storage, cartage, and labor on goods which are refused admission or delivery shall be paid by the owner or consignee, and in default of such payment shall constitute a lien against any future importation made by such owner or consignee.

SEC. 12. That the term "Territory" as used in this act shall include the insular possessions of the United States. The word "person as used in this act shall be construed to import both the plural and the singular, as the case demands, and shall include corporations, companies, societies, and associations. When construing and enforcing the provisions of this act, the act, omission, or failure of any officer, agent, or other person acting for or employed by any corporation, company, society, or association, within the scope of his employment or office, shall in every case be also deemed to be the act, omission, or failure of such corporation, company, society or association as well as that of the person.

SEC. 13. That this act shall be in force and effect from and after the 1st day of January, 1907.

Approved June 30, 1906.

The CHAIRMAN. A number of communications concerning the bill have been received. I will incorporate extracts from them in the printed hearings. The Department of Agriculture communications state that two types of fraudulent package have come to the attention of the department in the course of its administration of this act.

The first type is that commonly known as the "slack-filled package,” frequently used in the marketing of spices, pepper, and other condiments, oatmeal, rice, macaroni, and like articles. These packages are partly filled with food, in some instances to but one-third of their true capacity. They are designed to mislead the consumer as to the quantity of food purchased and to exact from him a price based on the apparent rather than the true quantity of the article thus packaged. This type of package not only tends to the deception of the consumer but to promote unfair competition, since that portion of the trade dealing with honestly filled packages of food is detrimentally affected by the competition of the package which is slack filled.

While it is true that these packages usually are marked in some manner with a statement of the quantity of contents in conformity with the provisions of the net-weight amendment to section 8 of the Federal food and drugs act (37 Stat. 732), purchasers are nevertheless deceived because they rely on the appearance and size of the package to indicate the quantity of food contained therein, and where the discrepancy between the size of the package and the amount of food contained therein is so great the marking of the weight is an insufficient means of apprising the purchaser as to the actual amount of food purchased.

The second type of fraudulent package which, in the opinion of the department, should be dealt with by way of further amendment to the food and drugs act is that which is contrived to give the purchaser a false impression as to the quantity, quality, size, kind, or origin of the food contained therein. This type may be instanced by the following examples: Bottles with inverted bottoms designed to falsely indicate a greater quantity of food than is actually present; bottles made of thickened glass for olives, preserved whole cherries, and strawberries, especially designed to magnify the size of the individual olive or fruit and to conceal, in the case of olives, the interstices between each, thus giving to the consumer a false indication both as to the quality and amount of the contents.

The suggested amendments were based upon information developed by the department in the course of its administration of the net-weight provisions of

the food and drugs act, which shows that certain forms of package food, notably spices, condiments and cereals, are often marketed in containers which are only half filled; that certain canned foods contain an excess of liquid such as water or syrup, and a deficiency of food material. These deceptive packages afford a convenient vehicle for covert increases in the cost of food articles to the consumer.

While the present provisions of the food and drugs act do not reach this form of deception, the general purpose and structure of this statute is such that with slight amendment its provisions could be readily extended so as to include within the definition of misbranding all forms of deceptive food packages.

We have with us this morning a number who desire to be heard on the bill. There are representatives here of the Department of Agriculture, the National Wholesale Grocers' Association, the Bottle Blowers' Association, the Flavoring Extract Association, National Confectioners' Association, Spice Manufacturers, and several attorneys who I believe desire to be heard.

The committee will first hear the representatives of the Department of Agriculture. Mr. Horigan, the committee will be pleased to hear you.

STATEMENT OF MR. JAMES B. HORIGAN, ASSISTANT TO THE SOLICITOR, DEPARTMENT OF AGRICULTURE, WASHINGTON, D. C.

Mr. HORIGAN. Mr. Chairman and gentlemen of the committee, I have examined the bill, and I will give just a brief outline of it, because necessarily there has been included, in order to make it dovetail into the rest of the food and drugs act, some repetitions and reenactment of parts of the act as it now stands. In the pamphlet copy of the food and drugs act, if you will follow that, gentlemen, the text of the present food and drugs act of June 30, 1906, with the present amendments in it, begins at page 19.

On page 20 you will find, in about the third or fourth paragraph, section 8, of the act, which deals with the misbranding of foods, that contains the pertinent provisions of the act, and it contains several subparagraphs. Paragraph 3 is what is known as the Gould amendment, passed March 3, 1913, and it deals with food in package form, and requires that the net weight of the contents be stated on food in package form, and we have added a paragraph after that in the proposed bill, in order to compel the filling of slack-filled packages. The bill, as drawn, adds, after paragraph 3, as it now stands, paragraph 4, which is to the effect that 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 Gould amendment, the package be not filled with the food it purports to contain, provided that reasonable variations and tolerances may be established by rules and regulations made in accordance with the provisions of section 3 of the present food and drugs act.

Mr. ANDERSON. Does that now refer to weight, quantity, or character?

Mr. HORIGAN. This refers merely to the compelling of the package to be filled to its true capacity, allowing for reasonable variations and tolerances, as the amendment proposes.

Mr. ANDERSON. There is a very grave doubt whether it does that at all or not. It is not clear whether the word "food" there relates to the quantity, character, or weight.

Mr. HORIGAN. It merely requires that the package be filled with the food. That refers back, of course. It is by way of an addition to the present act, and if you will notice section 8, on page 20, starts out," That an article of food shall be deemed to be misbranded" and this will be deemed to be misbranded under the food and drugs act if it is not filled with the food its purports to contain.

Mr. ANDERSON. Does that mean the kind of food, the quantity of food, or the number of pieces?

Mr. HORIGAN. It means the quantity. It must be filled to its true capacity with the quantity of food it purports to contain; that is. if it purports to be tomatoes, it should be filled with tomatoes; if it purports to be fish, it should be filled with fish, allowing for reasonable variations for certain empty space.

Mr. PURNELL. Suppose it looks like a quart package but only contains a pint in it, and so states on the container?

Mr. HORIGAN. That is precisely the situation we are dealing with, gentlemen. We want to get such packages as that.

Mr. MCKINLEY. What he said was, suppose it is a quart, and it is only marked a pint?

Mr. HORIGAN. If a quart represents its true capacity, I should say that it should be filled to its true capacity, less reasonable variations and tolerances; in other words, reasonably full.

Mr. MCKINLEY. In other words, you could have a quart space that was marked that it only contained a pint?

Mr. HORIGAN. Well, that would be, of course, true marking, but would still be deceptive to the consumer.

Mr. MCKINLEY. But is that what you are proposing to prevent? Mr. HORIGAN. We propose to prevent a package of a larger capacity from being slack filled.

Mr. MCKINLEY. But that would not be slack filled, if it says it only contains a pint.

Mr. HORIGAN. It would be slack filled, irrespective of the statement, if it was a quart package and contained but a pint.

Mr. MCLAUGHLIN of Michigan. Suppose the label says there is only a pint there, then there is no misrepresentation.

Mr. HORIGAN. Dr. Alsberg will deal with the reasons and motives for the bill. I find this situation occurs, that, psychologically, the size of the package outweighs in the minds of purchasers the statement of the quantity of contents, which is a thing that is more or less inconspicuous, while the size is a very conspicuous thing. I think you will find, when you examine containers, that deception does result, notwithstanding the quantity is marked on them, in compliance with the law as it now stands.

Mr. YOUNG. I have been getting a great many letters lately, mainly from candy people who have been considered as not filling their containers, in the nature of propaganda against this measure. I was just wondering why we were getting all those letters from these candy people.

Mr. HORIGAN. I can not say as to that.