semiprocessed foods are entirely (lifferent 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 repetitious 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 the packer or manufacturer. In other words, the purchaser of this class of foods also buys service which the purchaser of the first class performs personally.

The food standards of the nations of the world are strikingly in contrast. Certain races and nationalities desire and demand products that would be considered adulterated under American standards. These racial and national demands have always been met by domestic production or by importation. The organizations represented by this brief are prepared, not only to submit to, but to heartily cooperate in fair and reasonable regulations to support and maintain American standards of living, but feel that consideration should be given to the export of foods of a perishable and semiperishable nature.

Section 3 (a) determines what constitutes adulteration without attempting to define the terms used, and sections 10 and 22 empower the Secretary to set up standards of tolerance for the food, drug, and cosmetic industries. The standards so established would and could only be the standard applicable to domestic consumption-and yet the effect would be American dictation of standards of foreign food consumption. The result of this would be extremely detrimental to American export trade in these products and would cause an inevitable raise in prices to the American consumer.

As raw and semiprocessed foods are perishable or semiperishable natural products, the forces of nature are constantly at work upon

nem. Deterioration commences at the time of harvest and is bound to continue until the product has disintegrated. It is impossible to completely arrest this deterioration at any particular stage and at present foreign markets for these products have determined for themselves the standards which the goods must meet. For example, the dried-fruit industry is competitive in world markets with Russia, Persia, the Levantine and Mediterranean countries, Australia and South Africa. The application of existing regulations to world markets would deprive American producers of an economic advantage by conferring inequitable competitive opportunities upon the other producing countries through restricting shipments to such markets of American goods conforming to the regulations of the importing countries. The effect of such application would be to enforce the destruction of substantial quantities of properly salable products and the inevitable passage of the loss entailed to the American consumer. The consequent upward trend of prices would further reduce the purchasing power of foreign buyers. The economic effect with its many ramifications could seriously impair the solvency of American food-producing industries enjoying a large volume of export commerce.

It is respectfully submitted that the language used in section 2 of the present Food and Drugs Act, namely:

No article shall be deemed misbraniled or adulterated within the provisions of said sections 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 such article is intended to be shipped amply protects foreign buyers and further has the benefit of court decisions construing and interpreting, which construction and inter




pretation is understood and accepted in the export trade and under which a large export business has been built up in agricultural commodities.

In closing the discussion of this paragraph we should like to again emphasize the differences between raw and semiprocessed foods and those sold " ready to serve.”

(8) Section 22 provides for the setting up of advisory committees. With respect to the proposed advisory committee on food standards which would number 7 persons, 3 representing the public, 2 representing the Department of Agriculture, and 2 representing food industries, it seems that changes could be made which would prove beneficial to this provision and to the industries to be affected by the operations of the committee. Food industries should have representation on the committee equal to that of the public. Practically all recommendations coming before the committee for consideration would emanate either from the Department or the public. Such regulations would in all likelihood be, at least to a degree, theoretical in character and regulations based upon pure theory and discounting experience and the trained knowledge of industries should not be adopted as regulatory measures. It would appear that the committee required at least one favorable vote of a food industry representative before any regulation could be adopted. It is, consequently suggested that provisions of this character be written into the bill.

(9) Section 25 establishes the effective date of the law at 6 months after passage. It is submitted that this period of time is inadequate for the disposal of goods now on hand or in interstate distribution and that, consequently, great loss would be vested upon all factors of food distribution by the radical changes provided in this bill if they are made effective before complete disposal of such products. Respectfully submitted.



By D. K, GRADY. The CHAIRMAN. Each person is inconvenienced more or less by delay in opportunity to make a statement. Some are more inconvenienced than others. Those who live at a distance from Washington are naturally more inconvenienced than those who live in the city. Therefore, I think it is fair and right that I should call those who live outside of the city before I call those who live in the city.

Mr. BENJAMIN C. MARSH. Mr. Chairman, may I ask, please, when I will be given an opportunity to speak! You have been promising me for 3 days now an opportunity to speak.

The CHAIRMAN. I promised you I would give you the opportunity as soon as possible. I have had this idea in view, however. I did not expect it to run this long, but I think it is very fair. You live here in this city, and here are gentlemen, one from Chicago, one from Iowa, and one from Ohio. I think it is fair that these gentlemen should be allowed to make their statements before those who live in the city.

Mr. Marsh. Well, you had the attorney for the proprietary, the manufacturers on twice.

The CHAIRMAN. That is quite true.

Mr. MARSH. And quite characteristic. Now, if you would only let us know, some of us who represent the consumers would like to have a little look-in in this hearing and not give all the time over to the exploiters of the consumers.

The CHAIRMAN. You are going to have the opportunity.
Mr. MARSH. When.
The CHAIRMAN. I don't know.
Mr. MARSH. Today?

The CHAIRMAN. I don't know. It depends on how long these other gentlemen will take to make their statements.

Mr. MARSH. Are you going to continue the hearing until the consumers are heard ?

The CHAIRMAN. Of course, I said all along that the consumers would be heard. Some of them have been heard, but we cannot take everybody at once. We have to make a selection.

Mr. MARSH. Just so we have proportionate representation, if you don't mind.

The CHAIRMAN. What is that?

Mr. MARSH. Just so we have proportionate representation. This gentleman had an hour and a half to ask to be allowed to sell bugs and worms as apples, and stuff like that.

The CHAIRMAN. He was asked a great many questions. He is not entirely to blame for it.

Senator COPELAND. Mr. Chairman, I got the impression from the last few moments of his testimony, that the last witness made a positive statement that the manufacurer who would introduce into commerce goods which were not then in bad condition would not be criminally liable by reason of their subsequent deterioration. Do you think he would be?

Mr. GRADY. I was talking about the condition and the character of the product that remainded in their original place of production, and because of the inherent character of the product certain conditions applied. It is all in the record, Senator Copeland. I tried to explain because of their nature, the difficulty of determining because of opinion, as to the degree of defect, that is, whether they were or were not in harmony with the regulation, and that is what leads to difficulties.

Senator COPELAND. I am sorry I did not hear your testimony. I shall read it. I was called away to receive a Japanese prince in the absence of the Senate.

Mr. GRADY. I might say, if I may respond to just that last statement, I have come 3 thousand miles to appear here, to bear a message to you from the producers on the Pacific coast. We have a great many industries out there in the perishable and semiperishable food lines. The whole community is dependent on these industries, and we shall especially appreciate your personal attention to our suggestions, Senator Copeland.

Senator COPELAND. The chairman says you made a fine presentation. I shall take pains to read it. I do regret I did not hear your statement. I will read it carefully.

The CHAIRMAN. I will call Mr. Frank A. Blair.

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