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.

As far as it is applicable, I think it is identical with the language of my bill.

The CHAIRMAN. Supposing they substitute for the part removed a superior article or ingredient, thus making the final article really more valuable. Would that still be misbranding under your proposition?

Mr. ROGERS. I should think so. Of course opinions as to what constitute superiority or inferiority will vary. A man has a right to be assured that he is really buying what he is told he is buying, even though some one else may say the substitute is of a superior quality. Therefore I should answer your question in the affirmative. Mr. DEWALT. I would like to ask the chairman a question, and Mr. Rogers also. Referring to section 3 of your bill, do the present acts in regard to branding and labeling go so far as to make it a criminal offense for anyone to have in his possession such articles? Section 3 says, "That every person who, in any territory of the United States or in the District of Columbia, sells, or exposes for or has in his possession"; does that mean the mere possession of such articles. Do the other acts go as far as that?

Mr. WINSLOW. It says, "possession for sale."

Mr. DEWALT. Of course, if he had possession of them he would undoubtedly have them for sale and not for mere exhibit.

Mr. ROGERS. That language is copied from one of the three statutes which I have cited, and, if I may, I will put in the record the original of that particular phrase. The British act makes it an offense if any person "sells, or exposes for, or has in his possession for sale, or any purpose of trade or manufacture," any falsely described goods or things. Of course it does not mean mere possession. We must establish that it is possession for sale in order to have this section applicable.

Section 6 defines in half a dozen different ways "trade descriptions." And I may say, Mr. Chairman and gentlemen, that running throughout this act my theory has been that there are three different kinds of deceit possible, first, a straight misbranding; second, a misrepresentation; and third, the application of a false trade description. Oftentimes, perhaps more often than not, those three terms would be synonymous in their application.

But there are cases where misbranding is not a representation and is not a trade description, and vice versa. Therefore, wherever I mention in the bill the word "misbranded" you will find it followed by "misrepresented" and "falsely described."

Section 7 defines what constitutes an application. An application, of course, may in some way be affixed to the goods themselves or it may be to the covering, to the label, or to the container of any kind.

Section 8 defines the word "covering" so as to include all kinds of containers or receptacles in which goods are placed and finally put upon the market.

The CHAIRMAN. What do you say as to the practicability of labeling articles of commerce?

Mr. ROGERS. I do not believe it is practicable or useful to the public to require the labeling of all articles of commerce. If I did I should go further than this bill goes and require affirmatively correct labeling. The theory of this bill is that there shall be no dishonest labeling.

In other words, my view succinctly is that I do not believe the Lindquist bill would be practical in operation. I think it would be an actual hardship on the public rather than a help to the public. Section 9 deals with the fraudulent use of a trade-mark of another, which is prohibited.

Section 10 provides:

That the Secretary of Commerce, the Secretary of the Treasury, and the Secretary of Agriculture shall make uniform rules and regulations for carrying out the provisions of this act.

Mr. MERRITT. Why do you think it is necessary to say anything about trade-marks, which have been covered already in the trademark law?

Mr. ROGERS. My impression is that the provisions contained in section 9 may not be wholly covered in the trade-mark law. If they are, then section 9 can be eliminated.

Section 11 makes the Bureau of Standards of the Department of Commerce the vehicle for the examination of the specimens which are claimed to be misbranded. Such examinations, of course, are very frequently of a highly technical and difficult character and can best be performed, I think, by the Bureau of Standards.

Mr. SWEET. In section 10 you provide that the Secretary of Commerce, the Secretary of the Treasury, and the Secretary of Agriculture shall make rules and regulations to carry the act into effect. Why do you think it is necessary to include the Secretary of the Treasury?

Mr. ROGERS. Because a very large part of the transactions covered by this bill will be import and export transactions, and the Secretary of the Treasury having control over customs, it seems to be rather natural that he should be one of the three officials concerned.

The CHAIRMAN. The provisions in practically all of the remaining sections of your bill are almost identical with the provisions in the Barkley bill, and I think they are also very similar, almost identical, with the provisions in the French bill.

Mr. ROGERS. I have not examined the French bill, but they are identical, I am sure, with the existing law, by which I, and no doubt Mr. Barkley, have been guided, as far as the existing law was applicable.

The CHAIRMAN. They are in the pure food and drug act now.

Mr. ROGERS. They are in the pure food and drug act now, and they are also in the insecticide act, which is not so well-known, but which is analogous, as far as it goes, with the pure food and drug act. In view of the suggestion of the chairman, I will not spend any time on the other sections of the bill. It is provided in section 17

Mr. DEWALT (interposing). If I may be permitted-I see that the inquiry I made is covered and protected by section 13 in your bill, which is similar to other sections in previous acts, to wit:

That no dealer or other person shall be prosecuted under the provisions of this act when he can establish a guaranty signed by the manufacturer, wholesaler, or other 177735-202

person residing in the United States from whom he purchased such goods or articles to the effect that the same are not misbranded, misrepresented, or falsely described within the meaning of this act, designating.

Mr. ROGERS. Yes. Section 13, of course, is fundamental in any statute of this kind. If we do not have some way by which an individual dealer may be protected by turning back to the person from whom he buys, the wheels of business would instantly be stopped; and that was recognized in the act of 1906 and also in the act of 1910. The CHAIRMAN. Is section 18 necessary?

Mr. ROGERS. I think not.

I should like to call attention to one or two queries that have occurred to me in drawing up this bill, because it seems to me that the committee in considering the various measures will perhaps be willing to have its attention directed to the things that struck me as troublesome.

In the first place, we have a proviso in section 4:

That this act shall apply to goods or articles of merchandise intended for export to any foreign country only in the event that a false mark, trade-mark, label, brand, device, or representation is used thereon or in connection therewith.

This proviso goes on to say:

But if said goods or articles shall be in fact sold or offered for sale for domestic use or consumption, then this proviso shall not exempt said goods or articles from the operation of any of the provisions of this act.

Mr. WINSLOW. What is the purpose of your providing this protection on export business?

Mr. ROGERS. That is one of the things which I was not sure about and which I wanted to submit for the consideration of the committee as one of the high lights which I think it will need to consider very carefully.

Of course, this language allows a manufacturer in this country to send to India or to South America a fabric which is marked "pure silk" when it has not a thread of silk in it, provided, of course, that that can be done in accordance with the laws of the country to which it is going. On the other hand, it prevents pirating of a trade-mark; it prevents the arrow, for example, being put on textile fabrics which in this country is recognized as the trade-mark of a certain manufacturer. It prevents the group of stars or any other symbol which is registered and is the property of some other person being used, unless by the manufacturer himself. In other words, it protects the other manufacturers in this country, but it does not necessarily protect the purchaser in the other country. The question is how far it is ethical for us to permit, by the provisions of this act, the sending forth of an article which is in any sense misbranded, even though it may be permissible to sell it under the laws in effect in the country where the article is to be sold.

Mr. WINSLOW. How does that protect our manufacturers against a manufacturer in a foreign country who sees fit to copy the trademark of an American manufacturer and sends it into a third country? Mr. ROGERS. It does not protect him at all. We can not cover such cases except by treaties.

Mr. WINSLOW. So we would be obliged to mark it "pure silk" if we were to ship it to India, and it would have to be pure silk, whereas in France, for instance, they could mark it "pure silk" and not have any silk in it at all.

Mr. ROGERS. That is true, assuming that my proviso is so changed as to apply the same rules for exports and for goods sold in our domestic markets.

Mr. WINSLOW. So in that way you are not helping the American manufacturer a great deal?

Mr. ROGERS. No; you are not.

Mr. SIMS. Why would you not help the American manufacturer if the foreign countries knew that we did not put up with anything of that sort ourselves and would not allow that sort of practice? Why would not that help the American manufacturer?

Mr. ROGERS. I think it might result in the creation of a feeling toward American goods that would be useful to us.

I am free to say that I took a middle ground in the proviso which I have proposed because of the language in the pure food and drug act, which reads as follows:

That no article shall be deemed misbranded or adulterated within the provisions of this act when intended for export to any foreign country and prepared or packed according to the specifications or directions of the foreign purchaser when no substance is used in the preparation or packing thereof in conflict with the laws of the foreign country to which said article is intended to be shipped.

In other words, the pure food and drug act is very much less moral than the proviso which I have suggested. The pure food and drug act allows any kind of misbranding of exports, whether by the misuse of a trade-mark or by a descriptive mark of any kind. My proposal, it seems to me, is about half-way between the provisions of the pure food and drug act and what I think I would consider was the ideal ethical standard, namely, that all goods intended for export to a foreign country should be marked exactly and as strictly as if they were intended for consumption in this country. It is because of my doubt as to what the wise legislative course is along this line that I have suggested the problem as I saw it, after a study of existing law and have suggested this as at least one solution.

Mr. COOPER. It is your intention under the provisions of this bill to prohibit the misbranding of articles and putting shoddy on the market, is it not?

Mr. ROGERS. It is not the intention to prohibit the putting of shoddy on the market, if the purchaser is not told that it is something else.

Mr. COOPER. You do that to protect our people in this country? Mr. ROGERS. Yes.

Mr. COOPER. Surely we would not be very consistent if we allowed the American manufacturer to send an article out of this country for export that is misbranded.

Mr. ROGERS. I think there is a good deal of force in that suggestion. Mr. COOPER. The reason I make that statement is this: I may have misunderstood the gentleman from Massachusetts, Mr. Winslow, but I think he objected awhile ago to placing this restriction upon articles of export.

Mr. WINSLOW. I do not mean to give any expression of my views; I am fishing for information.

Mr. ROGERS. We have three possible courses here. We have the loosest and the laxest course, which is the one taken in the pure food and drug act, namely, that we can export anything, no matter how marked, provided the export is in accordance with the order of the

foreign customer and does not conflict with the laws of the foreign jurisdiction.

Then we have the middle course, which I have proposed tentatively for the consideration of the committee in the bill, which provides that if there is no actual misrepresenting, no use of a trade-mark, for example, in violation of our laws, or of this act, then the goods may be shipped to the foreign country. That is the middle course.

The third course, and I suppose we could perhaps agree, the highest ethical course, is to say that we should make no distinction between goods for export to foreign countries, in the matter of labeling, and goods which are to be sold within the jurisdiction of the United States. Which of those three courses is the wisest I do not pretend to be able to guarantee to the committee. But I wished to put the problem before the committee for its consideration in the framing of such a bill as it may decide to report.

Mr. SIMS. Do you not believe in the soundness of the old proverb that "Honesty is the best policy"?

Mr. ROGERS. That has a very familiar sound, and it seems to work pretty well.

Mr. RAYBURN. Is not this true, that if we go to this length to protect our people that is a good deal further than we have ever gone?

Mr. ROGERS. Yes. Of course it is true to-day that there is no protection to our own people, except on food and drugs. Why should we hesitate about protecting a man from buying a pair of paper shoes or a spurious metal watch which has been misdescribed? I think it will be a splendid accomplishment if this committee can provide for giving that protection to purchasers and curing that defect in our

Mr. WINSLOW. I have two propositions I would like to submit to you in respect to the matter about foreign trade. Suppose a manufacturer here should receive an order from the Argentine for imitation leather for automobile tops and his customer in the Argentine has to have that branded "leather" for the simple reason that his competitor in the Argentine market is buying a like article in England marked "leather" and if he did not buy something which he could sell at the same price he could not sell anything at all. That would mean a loss of business distinctly to the American manufacturer, and he is selling to the Argentine under conditions which are apparently satisfactory to the commercial interests of the Argentine. The question arises in such a case as to whether or not we are doing the people of the Argentine any damage when they are allowing every other country a like privilege of infringement, on the rules of strict honesty. What would be your idea as to the lack of integrity on the part of the American manufacturer?

Mr. ROGERS. I do not think there is any lack of integrity proposed in that transaction, and it was because of exactly that kind of transaction and because I had it in mind that I put the bill in this form. I think the middle ground is best, on the whole. I do not think it will work an injustice, and I think it may prevent the American manufacturer from being seriously handicapped in foreign trade.

Mr. WINSLOW. Another question. Are you covering in your bill the matter of raw material? Suppose a manufacturer of light hardware in this country specifies to the rolling mill that he wants steel containing so many points of carbon, which is a description known in