contempt of court if he violates that injunction, seems to be multiplying the penalties for something that is not iniquitous, that is not intentional.

Senator HEBERT. Would you remove the minimum penalty?

Mr. GRADY. I would, sir. I would place that within the discretion of the court. In the case of a section 2 action under the present law that is criminal prosecution.

Senator HEBERT. Next, you would remove the penalty of the injunction?

Mr. GRADY. I would, sir.

Senator HEBERT. In all cases?

Mr. GRADY: Not in all cases, no; but in those cases where it is clearly demonstrated to be unavoidable. I believe that in the administration of the present act that fact has been recognized by the officers of the administration.

Senator HEBERT. Of course, I take it, you have no objections to the destruction of the goods?

Mr. GRADY. We do have objection to the destruction of the goods; but if they are bad, certainly not; we would prefer to have them destroyed rather than moving them into consumption.

Senator HEBERT. I mean, if they are bad.

Mr. GRADY. That is correct, sir.

Senator HEBERT. I am glad to get your views on that point. They are worth considering.

Mr. GRADY. They have been given a great deal of thought and we believe them to be eminently fair, sir, and knowing as we do the nature of these goods. I want to thank you. If I may, with your permission, Mr. Chairman, I will file the brief.

The CHAIRMAN. You may.

(The brief submitted by Mr. Grady is as follows:)

BRIEF ON BEHALF OF DRIED FRUIT ASSOCIATION OF CALIFORNIA AND CALIFORNIA STATE CHAMBER OF COMMERCE

In re Senate bill 2800, by Hon. Royal S. Copeland.

The Dried Fruit Association of California and the California State Chamber of Commerce desires to place on record the views of these associations with respect to Senate bill 2800, introduced by the Honorable Royal S. Copeland and intended to supplant the present Food and Drugs Act.

The Dried Fruit Association of California through its membership is entirely representative of the industry of that State. Its members handle more than 95 percent of the State's total products, aggregating an average of more than 500,000 tons annually. This production represents more than 90 percent of the total American dried-fruit production. The California State Chamber of Commerce has in its membership firms and organizations thoroughly representative of the agricultural and other industries of the State. These organizations are heartily in accord with legislative and regulatory activities of the Government, which will promote public welfare, protect the public health, prevent fraud in business, and commercial chicanery of any sort.

On the other hand, these organizations are impressed with the fact that the needs and problems of industries producing raw foods or

semiprocessed foods are entirely different from those affecting refining, fabricating, manufacturing, and processing of foods in a form "ready for human consumption." The statements contained herein are intended to constructively suggest changes that may be made in existing proposed statutes, particularly Senate bill 2800, which would permit of equitable recognition of the problems of such industries as the dried-fruit industry and other perishable and semiperishable producing industries. In setting forth these statements they are inspired with a desire to cooperate with the Government in serving the best interests of the public while at the same time defending by fair means the just rights of growers and others engaged in producing and handling high-quality foods enjoying, under the auspices of the present law, wide consumer acceptance not only in the United States but on an international scale.

(1) Section 3 (a), subsection 4, seems objectionable because it permits the possibility of contamination rather than the fact of contamination to govern the administrative acts of the Secretary. Since contamination can be determined by objective examination, there seems little justification for presumption or opinion to be given finally.

(2) Section 7, paragraphs (d) and (e), relates to the naming of standards of quality by the Secretary under mechanics provided therefor in section 11. Since to all intents and purposes such standards would become mandatory in character, these powers are objected to. Most American industries (and certainly the dried-fruit industry) have been built up on a basis of industry standards and grades developed to meet not only national but international situations. They have in part been the product of evolution and in part represent adaptations to meet established trade practices and customs developed by foreign producing countries (in the case of dried fruits long before an American dried-fruit industry came into existence). Most present standards are universally understood and accepted and it is submitted that the making of standards as well as grades in the food industries is distinctly a prerogative of the industry, and that the Secretary should not have the power to abolish established standards nor to promulgate such mandatory standards unless voluntarily sought by the industry itself.

(3) Section 12, relating to "permit factories" is objectionable primarily because it is entirely too discretionary in character in spite of other provisions of the bill which would seek to safeguard this. It is recognized that provisions here are intended solely to protect the public health, but it is submitted that if such control is necessary it should be operated under conditions based on fact rather than upon opinion or presumption. It would appear that there is ample opportunity for the prevention or interception of shipments in interstate commerce of foods dangerous to health.

(4) Section 13 provides that officers and employees duly designated by the Secretary are authorized to enter factories and plants after making reasonable request and obtaining permission of the owner, etc. The effect of this provision may prove to be anything but reasonable since it leave entirely too much to the discretion of individuals. While the policies of the Secretary and his administration

contempt of court if he violates that injunction, seems to be multiplying the penalties for something that is not iniquitous, that is not intentional.

Senator HEBERT. Would you remove the minimum penalty?

Mr. GRADY. I would, sir. I would place that within the discretion of the court. In the case of a section 2 action under the present law that is criminal prosecution.

Senator HEBERT. Next, you would remove the penalty of the injunction?

Mr. GRADY. I would, sir.

Senator HEBERT. In all cases?

Mr. GRADY: Not in all cases, no; but in those cases where it is clearly demonstrated to be unavoidable. I believe that in the administration of the present act that fact has been recognized by the officers of the administration.

Senator HEBERT. Of course, I take it, you have no objections to the destruction of the goods?

Mr. GRADY. We do have objection to the destruction of the goods; but if they are bad, certainly not; we would prefer to have them destroyed rather than moving them into consumption.

Senator HEBERT. I mean, if they are bad.

Mr. GRADY. That is correct, sir.

Senator HEBERT. I am glad to get your views on that point. They are worth considering.

Mr. GRADY. They have been given a great deal of thought and we believe them to be eminently fair, sir, and knowing as we do the nature of these goods. I want to thank you. permission, Mr. Chairman, I will file the brief.

The CHAIRMAN. You may.

you. If I

(The brief submitted by Mr. Grady is as follows:)

may, with your

BRIEF ON BEHALF OF DRIED FRUIT ASSOCIATION OF CALIFORNIA AND CALIFORNIA STATE CHAMBER OF COMMERCE

In re Senate bill 2800, by Hon. Royal S. Copeland.

The Dried Fruit Association of California and the California State Chamber of Commerce desires to place on record the views of these associations with respect to Senate bill 2800, introduced by the Honorable Royal S. Copeland and intended to supplant the present Food and Drugs Act.

The Dried Fruit Association of California through its membership is entirely representative of the industry of that State. Its members handle more than 95 percent of the State's total products, aggregating an average of more than 500,000 tons annually. This production represents more than 90 percent of the total American dried-fruit production. The California State Chamber of Commerce has in its membership firms and organizations thoroughly representative of the agricultural and other industries of the State. These organizations are heartily in accord with legislative and regulatory activities of the Government, which will promote public welfare, protect the public health, prevent fraud in business, and commercial chicanery of any sort.

On the other hand, these organizations are impressed with the fact that the needs and problems of industries producing raw foods or

semiprocessed foods are entirely different from those affecting refining, fabricating, manufacturing, and processing of foods in a form "ready for human consumption." The statements contained herein are intended to constructively suggest changes that may be made in existing proposed statutes, particularly Senate bill 2800, which would permit of equitable recognition of the problems of such industries as the dried-fruit industry and other perishable and semiperishable producing industries. In setting forth these statements they are inspired with a desire to cooperate with the Government in serving the best interests of the public while at the same time defending by fair means the just rights of growers and others engaged in producing and handling high-quality foods enjoying, under the auspices of the present law, wide consumer acceptance not only in the United States but on an international scale.

(1) Section 3 (a), subsection 4, seems objectionable because it permits the possibility of contamination rather than the fact of contamination to govern the administrative acts of the Secretary. Since contamination can be determined by objective examination, there seems little justification for presumption or opinion to be given finally.

(2) Section 7, paragraphs (d) and (e), relates to the naming of standards of quality by the Secretary under mechanics provided therefor in section 11. Since to all intents and purposes such standards would become mandatory in character, these powers are objected to. Most American industries (and certainly the dried-fruit industry) have been built up on a basis of industry standards and grades developed to meet not only national but international situations. They have in part been the product of evolution and in part represent adaptations to meet established trade practices and customs developed by foreign producing countries (in the case of dried fruits long before an American dried-fruit industry came into existence). Most present standards are universally understood and accepted and it is submitted that the making of standards as well as grades in the food industries is distinctly a prerogative of the industry, and that the Secretary should not have the power to abolish established standards nor to promulgate such mandatory standards unless voluntarily sought by the industry itself.

(3) Section 12, relating to "permit factories" is objectionable primarily because it is entirely too discretionary in character in spite of other provisions of the bill which would seek to safeguard this. It is recognized that provisions here are intended solely to protect the public health, but it is submitted that if such control is necessary it should be operated under conditions based on fact rather than upon opinion or presumption. It would appear that there is ample opportunity for the prevention or interception of shipments in interstate commerce of foods dangerous to health.

(4) Section 13 provides that officers and employees duly designated by the Secretary are authorized to enter factories and plants after making reasonable request and obtaining permission of the owner, etc. The effect of this provision may prove to be anything but reasonable since it leave entirely too much to the discretion of individuals. While the policies of the Secretary and his administration

might be entirely reasonable in this respect, it is entirely conceivable that officiousness be encouraged on the part of individuals upon whom such authority is conferred.

(5) Section 17, subsection 7 (b) provides a minimum fine and although the fine in question does not represent a substantial sum, it, nevertheless, relates to certain offenses which are clearly unavoidable and which should not be subjected to fines of even such small amounts. In our discussion of section 19 relating to injunction proceedings we will enlarge on this thought. It is submitted that the minimum-fine provisions should be removed so that such minimum fines would be discretionary with the courts of proper jurisdiction. (6) Section 19, subsection A (1) declares certain acts to be nuisances. Subsection (1) of this section declares the repetitious introduction into interstate commerce of any adulterated or misbranded food, drug, or cosmetic to be so classified. It seems apparent that in writing this particular provision the problems of the rawfood industries were overlooked. In spite of tremendous effort being made by the entire Pacific coast fruit industry, there are times when, due to analytical or sampling margins of error, different analytical determinations may be made by entirely unbiased inspectors. Point-of-shipment inspections in some instances have been reversed by inspections made at point of destination. These inspections may be supported by chemical analysis or visual or microscopic examination. In the past it has followed that the examinations made at destination determined the condition of the goods and reversed equally careful examinations made at point of shipment. This represents an unavoidable condition in the handling of raw and semiprocessed foods. We believe this to be recognized by the personnel of the United States Food and Drug Administration. Therefore, to provide that injunctions, temporary or permanent, may be awarded against unavoidable repetitions shipments, which may lead to the economic destruction of the shipper, appears to be violent in effect. It is submitted that this problem of the rawfood and semiprocessed industries deserves special consideration in order that they be protected from injury beyond that already suffered through the seizure and condemnation of shipments which appear to or do fail to meet the requirements of regulatory or administrative tolerances.

(7) Section 20 (d) of the proposed act provides:

A food, drug, or cosmetic intended for export which is not adulterated within the meaning of section 2, paragraph (a); section 4, paragraph (a); or section 5 shall not be deemed to be adulterated or misbranded under this act if it (1) accords to the specifications of the foreign purchaser, (2) complies with the laws of the country to which it is intended for export, and (3) is labeled on the outside of the package with the words "for export." But if such article is sold or offered for sale in domestic commerce, this paragraph shall not exempt it from any of the provisions of this act.

And we feel that this fails to recognize the fact that foods fall into distinct classifications, namely, raw or semiprocessed foods and foods fully processed ready to serve.

The first category includes vegetables, fruits, and staples customarily purchased by the housewife and finally prepared in the home. In the second classification we find that foodstuffs upon which the service of preparation, including cooking, is usually performed by