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contaminated with 4 or 5 worm bites. That is the thing I am trying to point out here. There could very easily be honest differences of opinion as to conditions.
Now, the repetitious introduction of natural food into interstate commerce, I assure you is unavoidable, in some cases, on a tolerance basis of this character. There have been cases when goods which were shipped in good faith, after careful preparation into interstate commerce, were found on arrival at destination, to not conform to the certification given them at point of shipment and even with certification, under the Government's regulation it was necessary to seize and destroy those goods. When that happens repetitiously, it follows, as a practical matter, that mere destruction of the goods is not sufficient, within the philosophy of the Food and Drug Administration. They feel they must apply pressure in order to induce greater care on the part of the shipper, so they institute what are known as section-2 actions, criminal actions, charging this firm with having violated the law subject to fines, and the penalties that are provided by law.
You not only seize the goods and destroy them because they are in violation of the tolerance provision, but you can prosecute the man and punish him by fine and imprisonment or both, and you can put an injunction against him, which he is powerless to conform to. He simply cannot hope to ship goods of this character where he is not himself the maker or the fabricator or the refiner. It is true he washes them up, he cleans them up, he does the best he can with the mechanical means at his disposal to do so. He sorts them and grades them, but they are shipped, and they are sold for the preparation of the housewife in the home. That service is not performed by those who handle them and distribute them.
Senator OVERTON. This bill undertakes to condemn as a public nuisance the repetitious introduction into interstate commerce of any adulterated products.
Mr. Grady. That is the point to which I am addressing myself.
Senator OVERTON. Now, then, where a natural product is introduced into interstate commerce, and then after its introduction into interstate commerce it becomes deteriorated, would it come under the public nuisance provision of this bill?
Mr. Grady. No; it would not in that case, unless they were picked up and the action went back to the original shipper, after a month's time or something of that character.
There may, however, be this: Many of these products are semiperishable, so-called. Nuts, beans, rice, grains of various kinds, fruits, dried fruits; they are held in storage and are freshly packed as desired by the distributor and consumer as demand sucks them out of this reservoir maintained on the Pacific coast. They are at that time freshly packed for shipment and introduced into interstate commerce.
The same progressive characteristic deterioration and spoilage that exist in New York City exist in California, Oregon, Washington, or Idaho, and those conditions we safeguard to the best of our ability, with all the modern storage facilities we can devise for that purpose, but even so, they do take place, and in spite of the care that is exercised, that which has to be or must be done on a whole
sale operation, some of these things happen. This is a wholesale operation. You cannot take each piece of product, when it runs in the millions of pieces per ton, perhaps, and manipulate each piece, but when you place them under a jeweler's eyeglass, or under ordinary good visual observation, you may detect defects. The goods then become illegal.
As I say, every effort is made to safeguard that particular condition, but we nevertheless do have these conditions arising. My only point here is to have an injunction order, temporary or permanent raised against a shipper who is twice in jeopardy already, one for the loss of his goods, and the second time for the criminal prosecution. I don't know that that applies to manufactured, refined, or fabricated goods, but it most assuredly does to products of this nature.
Senator HEBERT. Let me cite this illustration and see if that comes within the purview of the penalties fixed in sections 17 and 3. A can of green peas is prepared over in your factory in California with all possible care, and it is in good condition when it leaves the factory, it is shipped over to the Atlantic Seaboard, and goes on the shelves of the merchant, then it is found that for some reason or other it deteriorates, some organism gets in it, forms a gas and spoils it. Does that make it adulterated food within the meaning of the definition of section 3
Mr. GRADY. I should say so. I should say that that should be removed from the channels of commerce, just as our perishable or semiperishable product should be removed if they underwent spoilage.
Senator HEBERT. The merchant would not sell it if he knew it was bad. If he sells it, and it is returned, he always replaces it.
Mr. GRADY. He changes it. That is correct, sir.
Senator HEBERT. Yet the manufacturer of that good would be punishable by these penalties, would be subject to these penalties?
Mr. GRADY. He might be.
Senator HEBERT. How could you change that so as to exclude such cases from the operation of these penalties?
Mr. Grady. I recognize that that is a difficult thing, Mr. Senator. There have been suggestions made here for exemptions of certain types of products. I recognize that the granting of exemptions is a dangerous thing, but after all there is justice, and I believe and feel that justice should be accorded to these industries and that there should be recognition of peculiar problems, if they exist.
Senator HEBERT. How would that be if in clause 3, paragraph (a) of section 3—have you that before you?
Mr. GRADY. Yes, sir; I have.
Senator HEBERT. The clause which reads, "If it consists in whole or in part of any filthy, putrid, or decomposed substance.”
Would you accept “if there be used in the production of it, in whole or in part, any filthy, putrid, or decomposed substance”?
Mr. GRADY. That would probably suit us, sir. I am not enough of a lawyer to be able to analyze that, but I am very much afraid it would not satisfy the Food and Drug Administration, nor would it serve the ends that this act seeks to serve. I don't think we want to go into interstate commerce, even with our money in it, with
frlthy, putrid, or decomposed products. I don't think we would want to feed those things to the American consumer. But I do feel some safeguard should be provided there for the product.
Senator HEBERT. You could cure that by providing a penalty for introducing it into commerce. This relates to the preparation of it.
Mr. Grady. I don't think it has been so held, sir. This wording is substantially the wording of the existing law. It says, “If it consists in whole or in part of any filthy, putrid, or decomposed substance." That deals with those that have gone to decay.
Senator HEBERT. Exactly; and it makes no exception in those cases where apparently every precaution has been taken to guard against it.
Mr. Grady. That is true. We are asking for justice in that respect.
Senator HEBERT. And you cannot take precautions enough to prevent it.
Mr. GRADY. That is correct, also. The removal of the minimum penalty would, in part, take care of the situation, but we have also the repetitious introduction.
Senator HEBERT. That ought to be punished.
Mr. GRADY. The repetitious introduction, I submit, sir, should not be punished if it is of the character you and I are discussing.
Senator HEBERT. You and I do not agree on what is meant by repetitious introduction.
Mr. GRADY. May I interpret it as I see it, then?
Mr. GRADY. I ship a lot of a hundred boxes, we will say, of dried peaches into a market and it is picked up. I ship another lot of dried peaches into another market and it is picked up. I have done it twice. The Food and Drug Administration decide, “Well, this man is careless, he deserves to be policed ”, or we must make an example of him for the benefit of the industry", or whatever reason there may be, for the protection of the public. An injunction is obtained against me, and I go ahead with my business and I am scared to death, but unavoidably I ship out another hundred or 500 or 50 boxes, whatever the quantity may be, to another market and that is picked up. I am then in contempt of court. I have also had the goods seized; I have also been prosecuted, fined, perhaps imprisoned; so it seems a little rough to permit an injunction of this character.
Senator HEBERT. It seems to me it ought to be a little rough on the man who had his attention called to adulterated food and who persists in shipping more.
Mr. GRADY. Mr. Senator, I would like to say this in response to that: That I don't believe that there is a person engaged in the production of these products who can honestly assure anyone that from time to time raw foods will not find their way into interstate commerce, even out of his own plants, that will not violate technical tolerances. That is for the reason that that represents a degree and an opinion. What is dirty? A lot of dirt or just one speck of dirt? Don't you see my point! It is very difficult to say just how much constitutes this thing. Even the tolerances themselves cannot state that. Would a tolerance say 5 grains of orchard earth is clean and
6 is dirty? That isn't possible. One large lump of dirt might contain offence, carry offense, while 15 small specks might be overlooked entirely.
Senator HEBERT. I had in mind more particularly decomposed foods that have found their way into the market and the attention of the producer of that food has been called to it, and he ships another, and that, too, is decomposed, and his attention is called to it, and he ships a third time. Of course, there must be an end to it sometime.
Mr. GRADY. Senator, let me say this: One of the industries that I am speaking for some years ago, found a tolerance for this sort of defect, rather violently changed. That change brought about a panic in the industry, and as a result an organization was set up to certify that those goods were suitable for shipment in interstate commerce, in harmony with the regulations of the United States Food and Drug Administration. That organization has been operating now for 61/2 years. It was made the subject of a report by the Chief of the United States Food and Drug Administration to the Secretary of Agriculture, in which he commended it in no uncertain terms. He has referred to it in discussions with various individuals. He said it is an honest, efficent, impartial, and careful agency. Yet, nevertheless, its certificates have been repudiated, and I can assure, sir, will undoubtedly be repudiated in the future. The inspectors were inspectors who were trained in their technic by representatives of the Administration. That is the type of cooperation that is going on. The industry is willing to meet the tolerances. The Administration is cooperating by giving them the technical means of doing so. But even under those circumstances we find these things happening.
Now, we do not want to find that, after the tremendous experience and loss to growers that is entailed by maintaining the rigid system that I have described, a system of this character, that we are going to have injunctions raised against the whole industry, perhaps in time fining the whole industry for being in contempt of court for things that they cannot control.
Those are hairline distinctions in their opinion. There are two kinds of defects in the sense of filty, putrid, and decomposed prod
One is the factual defect that is determinable by objective examination, and the other is opinion defects that rest on the opinion of the individual who is examining the goods. As long as you have opinion, you have argument. On the factual defects, we have no offer to make for them. They are there; they are evident except for the margin of error that is found in the ordinary sampling of bulk commodities, like grains, raisins, apples, oranges, or anything else, where there may be several hundred or several thousand to the ton, and where your samples must be group samples. The effort is made to make the sample representative, but two samples out of the same cases may vary, and if they vary the one that is the worse determines the character of the product.
I submit, sir, again, that the punishment is adequate when it destroys the goods. But the punishment goes beyond that and would blacken the name of a shipper by criminal prosecution, which he dares not defend. Then to add to that the violation provision, that he shall have an injunction raised against him, which places him in
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.
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.
BRIEF ON BEHALF OF DRIED FRUIT ASSOCIATION OF CALI.
FORNIA 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