Mr. MCLAUGHLIN of Michigan. As I understand, this entire law does away with intent altogether.

Mr. LANNEN. It does.

Mr. ALSBERG. In the so-called Sherley amendment to the food and drugs act, as it now exists, an article is misbranded not only if there be fraud, but if the label is false and fraudulent. Those are the words. That applies to ordinary mistakes and to the entire matter. Mr. MCLAUGHLIN of Michigan. Otherwise, or largely, at least, intent is done away with.

Mr. ALSBERG. Yes; so far as intent can be done away with without specifically saying so.

Mr. MCLAUGHLIN of Michigan. You have had experience in these matters. How has that law operated in that respect?

Mr. LANNEN. We have not been permitted in the trial of cases to go into the intent of the manufacturers.

Mr. MCLAUGHLIN of Michigan. Has that worked serious hardship?

Mr. LANNEN. It has worked serious hardship. The manufacturers would not be permitted in the trial of cases on these spice containers to show innocent intent, and why these packages were slack filled, and things of that kind, unless the court would listen to him after the trial before the jury for the purpose of reducing the fine.

Mr. MCLAUGHLIN of Michigan. Are you in a position, or do you care say, what there is to justify a law not requiring the showing of intent?

Mr. LANNEN. Personally I have contended for the guilty-intent feature all the time for years. These food laws are all special laws that have created offenses that are not defined at common law, and you can make them any way you want them. You can make them with guilty intent or without guilty intent as a feature. I have always contended that guilty intent, or at least that some element of what you might call bad faith, must be shown to be involved in these cases in order to convict. They should show something of a malicious intent on the part of the manufacturer. I have seen some of the finest gentlemen that ever stood in shoe leather, as honest men as God ever made, whose intentions were the best in the world, convicted under that national food law for trifles, and their names published to the country as violators of the law. We should have the same privilege here as the patent medicine people have, at least in regard to guilty intent or fraud. We should be accorded the same privilege.

Mr. Bogart, are you going to make a statement for the candy people?

The CHAIRMAN. Thank you, Mr. Lannen. We will be very glad to hear from Mr. Bogart.

STATEMENT OF MR. S. V. BOGART, REPRESENTING E. GREEN. FIELD & SONS, NEW YORK, N. Y.

Mr. BOGART. The best statement I can make is to show the general range of candy boxes, from the small 1-pound package to the larger 1-pound package, and let you gentlemen decide for yourselves if that is not the condition that exists in every drug store and

retail confectionery that you pass by in the day, or where you purchase your sweets, and if I may be permitted, I should like to show those samples. There is a half-pound package, and there is a larger There is one package, there is another one, still another one, and still another.

one.

Mr. YOUNG. These are all 1 pound?

Mr. BOGART. These are all 1 pound. There is still another. There is a pretty wide range of 1-pound packages, and yet they are all labeled and contain the full pound of candy.

Mr. LANNEN. There, gentlemen, is the package that was condemned yesterday, containing 1 pound of candy. Here is a package that contains 1 pound of candy, and here is another one. If the housewife is deceived in buying this one, is she not deceived in buying this one and buying this one?

Mr. MCLAUGHLIN of Michigan. Still the criticism yesterday was directed to the false bottom.

Mr. LANNEN. We are not defending those false bottoms. The association is opposed to the false bottom. Mr. Bogart can tell you something about that in just a minute.

Mr. BOGART. The National Confectioners' Association in convention, held for the general good of the trade throughout the United States, had this very same question brought up.

Mr. LANNEN. When was that convention?

Mr. BOGART. I think the convention was the 17th day of May.
Mr. LANNEN. 1919?

Mr. BOGART. Yes; 1919.

Mr. LANNEN. The Springfield convention?

Mr. BOGART. At Springfield. At that convention the false-bottom packages were roundly condemned, and it was generally conceded and it was the concensus of opinion of those present that false-bottom packages be discontinued, and while they had crept into the trade during the past couple of years, it was done in the spirit of competition, perhaps. Perhaps it was done because they wanted to use up boxes that they had on hand, and it was easier to put in a false bottom than it was to get new boxes.

It was difficult for the box makers to take care of their orders, and in that way they crept into the trade, but it is very safe to say here. that it was not done with the approval of the trade, and I feel quite certain in making the statement that it is discontinued to-day. I do not know of a single house that is doing that to-day, and I am quite certain that the package you have there is a package that is obsolete, and yet I have not had a chance to discuss the matter fully with the manufacturer who put that out.

Mr. MCLAUGHLIN of Michigan. When was that bought? Was it stamped on the bottom?

Mr. WILSON. It says here in the letter October 17-this month, this year.

Mr. LANNEN. Of course, Mr. Chairman, that might have been put out six months ago, or a year ago, as far as that is concerned.

Mr. YOUNG. Prior to the war the false bottom was unknown? Mr. BOGART. I might say it was, because it was a condition of competition, as I say, practiced by some houses.

Mr. YOUNG. That is the point I am after. If some manufacturers engaged in competition with people who are putting out this candy-

I take it there is no false bottom in these boxes you show here-if they engage in competition with these people who are putting up candy in this form, is it not unfair competition to allow some other man to put in a false bottom and deceive the public? Is it not unjust both to the public and to the people who fill their boxes as these boxes are filled, to allow that false-bottom system to be permitted? Mr. BOGART, Well, personally, I would say that I would be very glad to see it abolished and never brought to light again.

Mr. LANNEN. Would not the consumer, though, get the same amount of candy for her money, Mr. Bogart, in either box?

Mr. BOGART. She would get the same amount of candy, because labeling has been a very strict matter with confectioners, and I think they are living up to the letter of the law in every respect.

Mr. LEE. Would it not generally cheapen the package if they had to put in a false bottom?

Mr. BOGART. Yes, sir. That is a very good reason why it should be discontinued.

The CHAIRMAN. As I understand, you are in favor of the bill as suggested here. Have you any amendment to offer?

Mr. BOGART. I am very much in favor of the bill as amended.
Mr. LANNEN. You mean the amendments I suggested?

Mr. BOGART. Yes, sir; because I think that does away with a good many false charges; because I think this gentleman on the right is quite correct.

The CHAIRMAN. Do you believe that the bill with amendments would give the protection required or desired?

Mr. BOGART. I think it would, from the little thought I have been able to give it; I think it would give the protection desired.

The CHAIRMAN. It would change the bill materially, of course. Mr. BOGART. Yes, sir; it would change it some.

Mr. YOUNG. Of course, you confectionary people would not want any law that would prohibit you from putting up an attractive package?

Mr. BOGART. Well, I do not think anyone would want us to put up an unattractive package.

Mr. YOUNG. I think not myself.

Mr. BOGART. The eye has a lot to do with the sale of every product. If you go to buy a box of candy for a sweetheart, I think you would go in and buy the prettiest box you could get.

Mr. YOUNG. I will say I don't know much about candy, and I usually buy it by the appearance of the box, and I suppose you would do it the same way.

Mr. LANNEN. Are you through, Mr. Bogart?

Mr. BOGART. That is all I desire to say.

Mr. LANNEN. I will ask Mr. Wheelock to address the committee. The CHAIRMAN. Thank you, Mr. Bogart. I believe Mr. Wheelock is next.

STATEMENT OF MR. LOUIS W. WHEELOCK, REPRESENTING STEPHEN F. WHITMAN & SON (INC.), PHILADELPHIA, PA.

Mr. WHEELOCK. Mr. Chairman and gentlemen, I was called by wire from Philadelphia last night to appear before your committee and show a line of packages of confectionery-that is, to show the

different packages, and I gathered together packages which represent our line as representative packages.

Mr. WARD. Would this law mean that candy would have to be packed in the same kind of containers, and of the same size?

Mr. LANNEN. Dr. Alsberg thinks not. I think we would at least be at the mercy of the department on that. If he took the notion that certain sized packages and packages of a certain shape should be put off the market, we would have to fight for it. We want to protect these packages that you see here, gentlemen. That is our object in coming before you. They are all innocent packages. But we want to catch the fraud and the false bottom like that, and put it off the market. We are just as much interested in doing that as Dr. Alsberg is, for the sake of the trade.

Mr. WARD. For instance, some of these candy makers put up candy in containers that are worth twenty times as much as the candy. How would that law affect that?

Mr. LANNEN. Here is where it would affect it: There would be containers brought into court that cost $5

Mr. WARD. They are used for jewelry cases, some of them. Some of the containers are very expensive.

Mr. LANNEN. Their department probably would not go to the extent of bringing a case against a fancy work basket, containing a pound of candy; I do not think that they would go to that extent, but it is on some of these boxes where we would get into trouble. It is something on the border line. We do not want to run into a situation of that kind. We want the crook to be caught, but we want the innocent man to be let alone.

The CHAIRMAN. After all, you would have to leave that to some one to determine?

Mr. LANNEN. It is expensive, Mr. Chairman, to have the court determine it.

The CHAIRMAN. It is expensive to enforce any law.

Mr. LANNEN. Yes.

The CHAIRMAN. It is necessary to have laws to prevent fraud and deception.

Mr. LANNEN. Not for the mere purpose of settling academic questions. The manufacturer does not want to have to fight for his rights on that can, for the mere purpose of being permitted to put it on the market.

The CHAIRMAN. The manufacturer is willing to fight to protect himself against fraud and deception, and he has to do it. The only way is to have some law that will afford protection to him.

Mr. LANNEN. I submit, Mr. Chairman, that there should be some real substantial offense against the public before we should be compelled to go to the expense of a fight in court. That is my contention. The CHAIRMAN. There is not much difference between the representations made here. They all seem to be in favor of the same thing, to do away with deception, and that is all that is sought to be done.

Mr. LANNEN. The trouble is, with this law, in doing away with deception, as it stands now, it would leave the door open to the hurting of innocent manufacturers.

The CHAIRMAN. We do not want to injure the innocent.

Mr. LANNEN. Then make them prove the intent to deceive.

The CHAIRMAN. I think you have admited there are some practices that should be discontinued.

Mr. LANNEN. No court would hesitate under the amendment suggested to convict crooks.

The CHAIRMAN. I assure you the amendments will be given consideration.

Mr. WHEELOCK. Our company has been in the manufacturing confectionery business since 1842, and I happen to have the original package which represents the identical form of the Whitman package, which has persisted since the foundation of the company.

The CHAIRMAN. How much does that package contain?

Mr. WHEELOCK. That particular package contains 2 pounds. The tendency has been toward a larger appearing package, due to competition. Our company, with the others, has met that tendency. Package candy is largely a gift proposition, and the giver wants his gift to appear as large as possible, and we have to cater to that instinct. Our standard package, which is a branded package under the name of "Sampler," was gotten up without regard to net weight. We designed a package which would be distinctive and identified with our company, and afterwards we found it contained 17 ounces. We branded it" 17 ounces." It doesn't conform to any standard weight. Mr. LANNEN. You are aware of the fact, Mr. Wheelock, that as so branded it would not be legal?

Mr. WHEELOCK. It is perfectly legitimate from our point of view. We give a package of candy which is practically in competition with a large package.

The CHAIRMAN. There is nothing about that form of package that would deceive anybody.

Mr. MCLAUGHLIN of Michigan. Why do you say that it would be forbidden now?

Mr. LANNEN. Under the regulation that would have to be labeled "One pound, 1 ounce.'

Mr. MCLAUGHLIN of Michigan. Wouldn't " 17 ounces " do?

Mr. LANNEN. No, sir.

Dr. ALSBERG. May I interject a moment? The bureau made a regulation with the evident thought in mind that if a package was labeled "72 ounces," for instance, "72 ounces" requires that purchaser shall do a sum in mental arithmetic to find out how much is in the package, so that we felt the fair way to declare the weight on package was in the largest unit in it, and I think that is the fairer way to declare the amount in that package; to say "One pound, 1 ounce."

The CHAIRMAN. In general terms?

Dr. ALSBERG. Yes, sir. Speaking technically, Mr. Lannen is right on that particular point. The object of that regulation was that somebody might attempt to camouflage the quantity by calling a gallon so and so many gills. The average consumer doesn't know how many gills are in a gallon, or in a quart.

Mr. LANNEN. We are not opposed to that.

Dr. ALSBERG. You are right, technically, Mr. Lannen. I only wanted to explain the reason for that regulation.

Mr. MCKINLEY. Take these two packages, for instance. Wouldn't the average person think they were getting a good deal more because