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Mr. GRAHAM. I had that in mind in my motion; that is, the two subjects of truth in fabrics and misbranding.
The CHAIRMAN. All those in favor of the motion say “aye.” (The motion was carried.)
The CHAIRMAN. As to the days of the week, shall we undertake to recognize the call for a holiday on Friday or Saturday, or shall we disregard them and go right along?
Mr. BURTNESs. With this much to do, I think we had better go on with the job and reserve only Monday morning.
The CHAIRMAN. It will be helpful if we can follow that definitely. Mr. MERRITT. I move that we proceed continuously, except on Monday.
The CHAIRMAN. If there is no objection, it is to be understood that we are to go on with the exception of Monday, every week day.
STATEMENT OF HORACE B. CHENEY, REPRESENTING THE Silk AssociATION OF
AMERICA BEFORE THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, APRIL 16, 1924
Gentlemen, the silk association by their representatives have for many years appeared before successive committees of Congress in relation to the questions of misbranding of merchandise and pure fabric bills, and the record of these hearings contains a great deal of matter submitted by them for your information. The principles underlying such legislation have not changed since such bills were first proposed some 20 years ago.
I am filing with your committee copies of the brief of the association presented in 1916, containing the testimony presented by me at that time.
The silk association during this entire period has been in favor of constructive legislation which should improve business conditions in general, such legislation as will be enforceable and will strengthen the action of the courts and of the Federal Trade Commission. It is not our belief that men who are bad can be made good by enactment, nor that the desire of such men to cheat and make false representations can be altogether stopped by any law. One law which can be enforced with reasonable success is worth 10 that can not.
I am filing with your committee copy of a reprint of the British merchandise marks act, which is the type of legislation that this association has uniformly advocated. This legislation is of the character of that introduced in the House by Mr. Rogers, H. R. 16, and by Mr. Barkley, H. R. 3225, and the bill which has been introduced in the Senate by Senator Lodge.
Since the first appearance of the representatives of this association before your committees, they have themselves sought redress for a great var'ety of misbranding abuses through the instrumentality of the Federal Trade Commission, and have been very successful in stopping some of the worst abuses which existed in their trade through this means. In fact, it is little understood how far the Federal Trade Commission has gone in this direction.
I am filing with your committee copy of a petition to enjoin misbranding, made through their attorneys by the Silk Association of America to the Federal Trade Commission. Practically all of the abuses complained of herein were enjoined, or consented to desist. Since the time of the presentation of this complaint the silk association have made several other complaints, particularly with a view to clearing up the situation with relation to that material which is now called “glos,” which has in the past been known by a variety of terms, such as “artificial silk,” “fiber," "imitation silk,” etc. The writer recently, in relation to this subject, prepared a statement showing the principal decision of the Federal Trade Commission with relation to textile matters, or other decisions which bear directly upon this problem, and is filing a copy of this statement, called “Glos; silk; and the law.” The most important and farreaching of their decisions in its general application is not one relating to textiles at all, but to oils, in which they held that although the distributer issued a statement explaining that the materials offered by him were not 100 per cent pure, he was yet ordered to cease branding boiled linseed oil, mineral oil, and drier, as “inedible compound boiled linseed oil” without stating the other i ngredients, and also to cease and desist branding as “extra W. S. lard oil,'' “brown strained fish oil,” “sperm oil, ” etc., compounds of those and any other
ingredients. This decision carries the question of misbranding almost as far as it could be carried after the enactment of the Rogers or Barkley bills, yet the enactment of one of those bills would unquestionably strengthen the hand of the Federal Trade Commission, enabling them to more effectively control the situation.
We are much opposed to the enactment of such legislation as is embodied in either the bill presented here by Mr. French or that which has been introduced by Senator Capper on the other side. Both of these bills embody the principle of compulsory branding. The worst weakness of such legislation was admitted by Mr. French himself in his testimony before the committee, when he agreed that it would be impossible to prosecute successfully any person making a retail sale of misbranded merchandise, even if the case were particularly flagrant and the merchant were without protection of a certificate from the manufacturer guaranteeing the correctness of the brand. There are more instances of misbranding in the retail trade than there are among the manufacturers. It is always difficult to get convicting evidence in such cases and to establish it in a court of law. Our own firm during the last week have had called to their attention a particularly flagrant case which they hope to successfully prosecute-a large retail store in Chicago has advertised two of our registered brands, misspelled, apparently with the idea that they would thereby escape infringement, and then have sold as a result of the advertisement merchandise of another firm's manufacture and an inferior quality, put up upon cartons which had originally held our goods, and with the verbal statement that such merchandise was of our manufacture. We also have had pending in the courts for two years a suit against one of the principal retail stores of New York for both selling merchandise of our manufacture, with false statements not authorized by us as to its character, and also attempting to sell the merchandise of other people as ours.
When Mr. French admitted before your committee that chemical analysis of textile fabrics did not form a reasonable ground of establishing their character, he at the same time, in our opinion, admitted the impossibility of adequately enforcing compulsory branding, accompanied by fines and imprisonment for false branding of the character required under his bill and that of Senator Capper. We have in our possession elaborate results of chemical analyses which prove that no chemists are able with even a reasonable degree of accuracy to establish such facts with relation to weighted silks and mixtures of silks and other textile fibers. Inasmuch as 75 per cent or more of all of the fabrics manufactured for clothing are to-day not sold in their original form, but are cut up and manufactured into garments before they reach the retail trade, the difficulties of such enforcement are multiplied manyfold.
We do not believe that it is feasible, as claimed by Mr. French, to secure such information with relation to imports of foreign manufacturers. In fact, we do not believe that either of these laws are workable, or offer a sound basis for progress in merchandising. On the contrary, they would be a backward step. On the other hand, we do not take the position of simply opposing all progress, but offer in the place of these bills a request that your committee enact reasonable, workable legislation, such as has been made in other countries, in none of which have they attempted such legislation as is embodied in either the French or the Capper bill.
SILK ASSOCIATION OF AMERICA,
Chairman Committee on Legislation.
MARCH 19, 1924. GLOS; SILK; AND THE LAW At the present time, when there is so much controversy going on in relation to the selection of the name "glos,” it seems an appropriate time to recall to the minds of the public, the attitude which the law had taken with relation to the subject, and to other trade practices surrounding the sale of silk goods, manufactured partly of silk, and partly of glos, and of various other combinations of these and other textile fibers, such as cotton, wool, etc., and other rulings of the Federal Trade Commission in relation to such kindred subjects as have a direct bearing upon the case.
One of the earliest decisions, and one which bears most directly upon the present situation, and which is most expressive of what their attitude is in relation to the subject of these two fibers is that contained in their decision No. 2 of October 20, 1916: "To cease branding textiles containing no genuine silk as silk” or "silks,” “Kapock silk," “sun-fast silk,” “tub-fast silk,” etc.
Finding No. 4: ""silk' when applied to textile goods, both in the technical and popular usage has a precise and exact meaning, and is only accurately and properly used in identifying and describing materials derived from the cocoon of the silk worm *
It is most interesting in connection with this distinct pronouncement on the part of the commission as to what constitutes silk that none of their very numerous decisions ever seem to mention the word “artificial;' when they wish to refer to this product they either refer to it as not genuine silk, or material manufactured from vegetable fiber, with luster somewhat similar to, but containing no genuine silk. It seems apparent that the commission has with evident forethought kept itself clear from ever using either the term "artificial” or “imitation" in connection with this product, and taken in connection with their ruling in relation to such goods is most significant:
Conference ruling No. 54, page 552: “Held, that labeling, advertising, and selling 'Savoy washable art silks' without qualifying terms which clearly designate that class of fabrics, composed partly of silk * * * is unfair."
Docket 683, September 27, 1922: "With relation to labeling 'art silk hose as applied to 'hosiery composed of cotton and of an animal or vegetable fiber, but containing no genuine silk as ladies' art silk hose,' etc. * * * is unfair." · It would seem even more certain what their ruling with relation to this subject would be when taken in connection with a large number of other decisions in relation to various products, some of them made of mercerized cotton, some of gloss, but in either case relating to substitution of other materials for silk. No. 55: “Agra silk"--mixed goods, partly silk, held unfair.
Their ruling with relation to the labeling of fabrics of mixed origin is even much more extensive and much more clearly laid down. Probably the most noted of all of their decisions in relation to this point is the Winsted Hosiery Case, as in orders No. 413, August 10, 1920, and 213, of January 14, 1921, in which various manufacturers of undershirts for men, manufactured from mixtures of cotton and wool such as “merino," "super-Cashmere," “extra super-merino,'' “merino shirts," "gray wool shirts," "men's natural wool shirts," “ Australian wool shirts," etc., were ruled as inadmissible and ordered to cease. The same principle was laid down in their decision of June 4, 1921, No. 611: “Ordered to cease branding boiled linseed oil, mineral oil and dryer, ‘inedible compound boiled linseed oil,' without stating other ingredients, also cease and desist branding as 'extra W. S. lard oil,' 'brown strained fish oil,' 'sperm oil,' etc., compounds of those and any other ingredients.”
In the case of silk goods very similar rulings have been made No. 684, November 1, 1922: “Hosiery composed in about equal proportions, and hosiery composed of wool and of an animal or vegetable fiber with luster somewhat similar to, but containing no genuine silk, labeled 'men's silk half hose,' 'cashmere hose' and 'silk and wool--held unfair.
Page 549: “Orford and Cambridge silks" ruled as unfair to so brand fabrics containing 15 per cent genuine silk, 85 per cent of other materials. Opinion that “without qualifying terms which clearly designate that class of fabrics, composed partly of silk, when in fact the fabrics complained of are composed only in part of genuine or cocoon silk, is an unfair method of competition.'
Page 550: “Labeling as "silk armure' goods partly of cotton, without qualifying terms should be discontinued.”
Page 551: Palermo silk goods composed partly of silk without qualifying terms held as above-page 549.
It is very evident that the commission has repeatedly ruled that it is improper and not allow able to label goods manufactured partly of silk, and partly of gloss, cotton, wool or any other material, as silk, and it would appear probable that they would rule, if the case were brought before them for decision, that weighted silk could not properly be labeled as silk goods, without qualification, if the principles laid down with relation to oils were to hold. This would make a considerable revolution in the trade, but it is probable that some day the question will be so decided by the courts, in view of the rulings which have already been laid down with relation to other subjects.
There are two or three other decisions of the commission which will vitally affect the silk business and which lay down the principle that materials long associated with the quality surrounding a material in the public mind, such as silk, can not without deception and unfairness be applied to other fabrics which might be used, or have the appearance of substitution, such as their decision No. 97 of September 12, 1919.
“Sol satin" as applied to a cotton fabric; held that the word "satin” had a tendency to mislead the public into the belief that the material was either wholly or partly of silk.
And now comes the latest decision of the Federal Trade Commission, issued only this week, in which they have held that the word "pongee” is a word associated in the mind of the public with true silk goods and could not properly be applied to cotton or mercerized cotton fabrics of a similar construction and appearance.
From these decisions it will appear that the principles already laid down in law are so far-reaching as to require only being brought to the attention of the Federal Trade Commission in order to have them rule that many practices very common in trade are improper and must be discontinued.
How much better it would be for the trade to see the handwriting on the wall and to themselves do those things which they ought to do rather than to wait until they are compelled to do them by court order.
STATEMENT OF HON. BURTON N. L. FRENCH, A REPRESENTA
TIVE IN CONGRESS FROM THE STATE OF IDAHO.
Mr. FRENCH. Mr. Chairman and gentlemen.
I hope to conclude in just a few moments. Yesterday when we closed we were right in the midst of considering the question of the enforcement of the truth-in-fabrics bill as pertains to the retail merchant. I think a few words will be sufficient to clear up that situation.
In the first place, I have indicated that jobbers, manufacturers, importers, shall all operate upon the basis of a permit. Therefore, I take it that practically all the goods with the exception of goods that might be produced within a State to be sold and consumed within the State would be under the jurisdiction of the law.
Second. Concerns that are capable of producing the fabrics that we are considering in the bill are concerns that have fairly large capital, and, generally speaking, are concerns that have their own good name, and that want to perform in a straightforward and honorable manner.
Let us consider, however, the retail merchant. I want to draw an analogy between the application of this measure and the application of the pure food and drug law and the insecticide law, as to its enforcement in the particular case suggested by the gentleman from Michigan, Mr. Mapes. How would you enforce the law against the retail merchant who would sell a suit of clothes that was not branded ? I indicated that he could fall back on the guarantee from the jobber, manufacturer, or importer. But suppose he chooses not to do it?
It would seem that the first thing you would do would be to see whether or not there are other suits, whether or not the garment could be traced to some producer.
If so, probably in that way you could determine what the contents might be. I indicated, as Mr. Cheney has reminded you, that in my judgment the laboratory test was not a final test.
I did not mean to indicate it in so broad a manner as Mr. Cheney understood me to. I think it is an important test. I do not think it is an infallible test.
Referring now to the application of the pure food and drug law in a particular case: A retail merchant sells a bottle of ketchup that has been made up in part from decayed tomatoes. As I understand it, the Agriculture Department, through the Bureau of Chemistry, is not able at this time definitely to prove by the laboratory test that the tomatoes were actually decayed before they were boiled and made up into the ketchup. They have been seasoned. They have been mixed with good tomatoes. A commodity has been put out which does not admit of final laboratory proof as to its origin.
On the other hand, the laboratory in the case I am referring to does point the finger, and when the finger is pointed at the products sold by one retailer the department is going to ask its inspectors to pay particular attention to that retailer, and the accumulated evidence piled up against him, together with the physical observation of the processes used in the manufacture of the ketchup, would doubtless be relied upon in making out the case.
Mr. MAPES. May I interrupt you? For the purpose of your bill, why would it not be sufficient to make it an offense for a retailer to sell goods that were not labeled ?
Mr. FRENCH. That would be another way around.
Mr. MAPES. It would do away with the necessity of proving that they were labeled falsely.
Nr. FRENCH. In an offhand opinion, it seems to me that the gentleman has made a most valuable suggestion, just as yesterday he pointed out a most vital point in connection with the enforcement of the law.
Mr. MAPES. It seems to me it might be quite as impossible for the retailer to tell whether he is getting goods that are all wool or all silk as it is for the ultimate consumer.
Mr. FRENCH. But would you not at once run into the difficulty of separating goods on the retailers' shelves that have been brought into the State from a different State, and where you might properly require labeling, from goods manufactured wholly within the State where the retailer is operating? At any rate your suggestion is most interesting.
But let me follow up with two other illustrations. Some time ago the Department of Agriculture in the enforcement of the pure food and drug law had its attention called to alleged substitution of horse flesh for pork in pork sausage. There was no question of health. It was good meat, we may assume, but it was not pork.
The laboratory test was not final. The microscopical test was not final, the chemical test was not final. Witnesses would not go on and swear absolutely from those tests, coming as they did from the laboratory, that it was horse flesh instead of pork. Yet the laboratory tests so indicated.
The finger was pointing that way. So strong was the evidence, so strong was the judgment upon the minds of the officials of the department that they followed it up, they checked up on the product carefully through their inspector, traced to its source and even were finally able to put on the witness stand those who were in the concern and were able to swear that horse flesh was being substituted for pork.
You say you could not rely on the laboratory in the truth in fabrics measure. But I submit that the laboratory test is the sort of evidence that will lead to the evidence that will make the case. Let me point to another illustration. When the pure food and drugs act was passed, there was no laboratory way by which you could detect salmon that was not prime, salmon that was too old before it was canned.