Senator PASTORE. Why should there be any relativity at all? I mean if a function in your department-one of my responsibilities, of course, is to manage the funding aspect of the Federal Trade Commission. We have always been as cooperative as we can be and we have always been very generous, as generous as we could be. In many, many instances we have taken it upon ourselves to restore some of the cuts that were made by the House, even though in view of the fact that there has been a standing complaint, a standing joke around this district that if you want to look for an important staff member of the Federal Trade Commission-I don't say this has happened under Mr. Weinberger or it is going to happen under you, but it was a standing joke, all you need to do is to go to a local golf course some afternoon and you would find him.

When I questioned Mr. Weinberger about this, he did admit there was a certain sloppiness about the organization of the Federal Trade Commission. And that we were not getting a day's work out of every member of the Commission, out of every staff member of the organization. And I brought up the question, this question of mislabeling, and I am afraid that there has been a relaxation down there at the Federal Trade Commission, that they think that this is of such an insignificant importance that more or less they are pushing this into the background and hardly anything is being done about it. Have you anything to say about this?

Mr. KIRKPATRICK. If that is the case, sir, it is not in line with our report. I would point out, Senator, that at page 45 of the report we say:

We do not fault the FTC for enforcing these protectionist statutes. It is the judgment of Congress that these industries deserve protection from competition, and it is neither our province nor that of the FTC to repeal those statutes.

It would certainly be my intention, and I know nothing in this report that would disown that intention, that we would enforce the statutes. I think it is a question in the report of a recommendation perhaps as to more effective and less costly means of doing it.

Senator PASTORE. If I remember correctly, when Mr. Weinberger came before our committee he emphasized the fact that they were very much interested in carrying out their work and continuing with reference to inflammable fabrics, but they were not so enthusiastic about the mislabeling. I think that is important too. Not only is that a protection to the economy of the country, because it depends on the competitive structure, insofar as business is concerned, but at the same time it does protect the consumer.

In many, many instances some of these imports that come in, for instance, are mislabeled, a lot of them are, as to the contents of synthetics, cotton, what have you, and we have no way of policing that, unless you do it with the Federal Trade Commission. At the same time here we are, we make investigations of our domestic industries, and any one of the investigators can go on the premises and detect any deception that is being perpetrated. I am afraid sometimes what we are doing, we are placing American industry in a very noncompetitive position unless we enforce this law equally as against imports as we do against domestic production. You agree with that, do you not?

Mr. KIRKPATRICK. Without knowing how the underlying legislation touches that matter, sir, I would say that we are charged with the enforcement of those acts, and enforce them we shall.

Senator PASTORE. I would hope, Mr. Kirkpatrick, that you would bear in mind what I am saying here today, because I am going to go into detail when you come before our committee for funding, because I think we would like to get an up-to-date report on exactly what you have done about enforcing the law on mislabeling.

Now another one of my functions is the chairman of the Subcommittee on Communications of this committee. For a long time there has been a "passing of the buck" between the FTC and FCC with reference to some of these outlandish assertions that are made in advertising on television. You have been pretty much involved in this; that is, the Commission has been very much involved, and so has the FCC. For the longest time we couldn't get the proper liaison between the two, so that the left hand would know what the right hand was doing. I would hope that you would look into that and make sure that we do promote and continue to maintain a liaison so that the FCC that has the power of revoking or failure to renew a license gets into the act on some of these things that I detect that are frauds against the consumers in the advertising area. I would hope that you would look into that as well.

Mr. KIRKPATRICK. I certainly intend to, sir.

Senator PASTORE. Thank you.

The CHAIRMAN. Senator Pearson?

Senator PEARSON. Thank you, Mr. Chairman.

The CHAIRMAN. In "Truth in Packaging," partial enforcement is lodged in FDA and there has got to be the same liaison there as you are talking about on that.

Senator COTTON. Mr. Chairman, if the Senator will yield for just one moment, the distinguished Senator from Tennessee, Mr. Baker, was here briefly but had to leave because of a pressing engagement. He asked me to point out for the record that he was here, that he was interested in the hearing, and that he, too, congratulated the President on his selection of Mr. Kirkpatrick for this important position. The Senator joins the rest of us in looking forward to your very effective service on the Commission.

Mr. KIRKPATRICK. Thank you, sir.

The CHAIRMAN. Sentor Pearson?

Senator PEARSON. I thank the chairman for making that reference to the Fair Packaging Act, because I want to make reference to that particular piece of legislation in a question.

What I started to say is that I think that both the Government and the governed are particularly fortunate that one with your qualifications would enter the public service, because we now have a chairman who goes in with a great deal of experience by virtue of heading the committee that made this study of the Federal Trade Commission. May I ask you if you would comment on the Consumer Protection Agency that is envisioned in legislation now pending in both the Government Operations Committee of the House and Senate, with reference to what impact that would have upon the Federal Trade Commission, an independent agency operating with another independent agency?

Mr. KIRKPATRICK. I am not familiar, Senator Pearson, with the legislation to which you refer in any detail. I would hope that to the extent that that legislation would remove any powers or any jurisdic

tion from the Federal Trade Commission that it would be withheld pending a year or more experience of the Federal Trade Commission. I think we have got a Commission here that should be given an opportunity in this time of consumerism to react and to bring itself to the forefront of both the consumer movements and the antitrust laws. And I hope that there would be no legislative dismemberment in the meantime.

Senator PEARSON. I have introduced legislation providing for unit pricing of food commodities. The distinguished chairman of the Consumer Subcommittee, Senator Moss, and other Senators, are cosponsors of that legislation. We were of the opinion that there should be at least two exemptions, one, to exempt the so-called mom-and-pop grocery stores, the corner convenience stores.

The problem in drafting that legislation is a problem that legislative bodies always have and that is where to draw the line. Do you feel that such legislation giving the power to the Federal Trade Commission to make that distinction-that that function would be proper for a consumer agency within the Federal Trade Commission?

Mr. KIRKPATRICK. I have not seen that legislation, Senator, and I have not had any opportunities to consult with my future colleagues or the staff of the Commission on it and I don't know that I really could comment.

It strikes me that its objective is one that has the consumer's interest at heart. Other than that I prefer not to comment, sir.

Senator PEARSON. Let me say finally that I was very pleased with your observation in reference to an answer about class actions. In previous hearings I think I indicated that I thought that we did not make remedies to fit the courts, but we made courts to fit the broadest range of remedies for people. In your endorsement of the triggering device, particularly as proposed by the administration, triggering device by the Attorney General, my concern about that particular part of the legislation is not the judgment or the good nature or the wisdom of the Attorney General, but the state of the courts as they are now. Some Federal courts are 17 months behind today and I know you can cite the delays better than I can.

Mr. KIRKPATRICK. Yes, sir; many more months than that in some districts.

Senator PEARSON. So the point is if we are going to put in a triggering device at a time when we have this great backlog in our courts I recall the Chief Justice of the United States in addressing the American Bar Association in St. Louis made reference to the fact that it was found in 1906 that the courts were inadequate and we really haven't done much about them in the last 60 some years, and he made a reference to the fact that they are operating in a supermarket age with a cracker-barrel judicial system today.

I think that is part of the class action problem which is our responsibility also. I once again want to say that often I hear Presidents and Governors talk about the greatest problem today, to get good people to enter public service. I think you bring unique and superb qualifications to this job and I wish you luck.

Mr. KIRKPATRICK. Thank you, sir.

The CHAIRMAN. Senator Moss?

Senator Moss. Thank you, Mr. Chairman.

Mr. Kirkpatrick, I welcome you before the committee. As I indicated in our conversation in my office, I think that you bring to this office, that you have been nominated for by the President, the unique qualifications that certainly should enable you to function very successfully there.

I have a few questions I did want to ask. I was pleased to see the Commission institute a rulemaking proceeding to require the listing of tar and nicotine in all cigarette advertisements. This is a logical next step following the congressionally imposed ban on broadcasting advertising of cigarettes, and one which Chairman Magnuson and I have long sought.

Although the Commission has been criticized in many areas, it can be proud of its forthright stand on cigarette advertising. As you know on January 1 of next year cigarette advertising will disappear from the electronic media. This committee is particularly concerned that there may then ensue a flood of cigarette advertising in the printed media. I very much hope you will have the staff of the Commission closely monitor the practices of the cigarette companies.

At the end of June of 1971, under the terms of this cigarette labeling law, you will then be free to proceed with your trade regulation rules to require warnings on printed advertising.

Would you be prepared to require a warning in all cigarette advertising if the behavior of the cigarette companies warrants that

action?

Mr. KIRKPATRICK. If the behavior of the cigarette companies warrants that action, of course, sir.

Senator Moss. And by behavior, I am really predicating that on this flood into printed advertising when electronic advertising ceases. Mr. KIRKPATRICK. If you speak, sir, merely of the amount of advertising involved, I don't think I could comment on that very knowledgeably at this time. It would involve a great deal, I think, of background in the cigarette rulemaking that I simply don't have and have not had access to.

But I want to very much consult with my future colleagues and with the staff on that matter. It certainly is a matter we would be very much alert to.

Senator Moss. The rationale behind the cigarette advertising bill was that, one, the product was found by the Surgeon General to cause serious disease, impairment of public health, and the electronic media was being used to induce more people to take up the habit and continue the habit, and therefore because of the peculiar control that we have over electronic media, we, the Congress, decided that it should cease. But now if the tobacco companies simply divert those funds and with ingenuity and the type of advertising, all of the rest, to still attempt to achieve the same results through printed media advertising, it seems to me the basic reason for banning the electronic advertising would then appear over on the printed side of the media.

And one of the things that must be done is a warning in the advertising itself to people of what it is going to do to their health if they take up or continue the habit of cigarette smoking.

Mr. KIRKPATRICK. I don't quarrel with what you say, Senator Moss, at all. I think one of the factors that I am unaware of is what weight to attribute to the peculiar and compelling nature of television ad

vertising on cigarette sales. That may be something that would distinguish and compel the action to be taken by the Congress on television advertising that would not be a factor in magazines or newspapers.

I am simply, I think, unable to deal with the question in terms of, in the categorical terms you would like me to deal, because I am simply not qualified to do so at this point.

Senator Moss. We already had some counterweight in the electronic advertising by the requirement of carrying the anti-ads, the little spots that are prepared by the voluntary agencies, to tell the effects of cigarette smoking. And they have been very effective.

What I am talking about is whether we might require some sort of similar thinking by putting in the ad itself what the health effects will be of continued use.

Mr. KIRKPATRICK. It is certainly a matter in my judgment that the Commission should carefully consider.

Senator Moss. On the 29th of June, Chairman Weinberger informied me that the Commission was undertaking a study of the relationship between advertising and drug abuse in response to a proposal now pending before this committee which I introduced. I hope that you would give this strong support and resources to this study.

Many experts in the drug field are convinced that certain kinds and types of advertisements, particularly those for over-the-counter medicines, are contributing to the drug abuse problem in this country. At the very least by promising the relief from anxiety and tension which they cannot offer, many of these ads deceive the American public into believing that problems can be solved simply by popping a pill. Will you pursue this study vigorously?

Mr. KIRKPATRICK. This study will be pursued, Senator. I believe it is already in the competent and vigorous hands of the Commission. Senator Moss. The recent hearings I held on the nutritional value of dry breakfast cereals and advertising of these cereals caused some concern. Will you vigorously pursue your announced study of the cereal industry?

Mr. KIRKPATRICK. It is my intention, and as I understand it the intention of the Commission.

Senator Moss. Will this focus on the advertising practices of the cereal industry?

Mr. KIRKPATRICK. I could not speak with personal knowledge of the precise focus. I believe it would be a general study, covering market structure, as well as performance, which would undoubtedly involve advertising practices as well.

I do not, myself, know whether that is the central focus of it or not, sir.

Senator Moss. One of the other problems is the structure of the industry, concentrated very largely in four producers of cereals that dominate the market. The structure of the industry should also be scrutinized might also be of interest.

Mr. KIRKPATRICK, I understand that is very much a part of the subject matter of the study, sir.

Senator Moss. On the 10th of June Chairman Weinberger recommended to this committee that we establish a vigorous enforcement procedure for the Federal Trade Commission in dealing with the Flammable Fabrics Act. Those recommendations have now been embodied in S. 3765.