discretionary powers to promulgate regulations to mainain fair competition, assure rational comparison between competing products, and prevent "the deception of consumers." These might include the establishment of reasonable sizes, weights, or quantities for competing products. They could require the disclosure of ingredients and prohibit the use of package shapes or sizes which are likely to deceive. The bill provides for full hearings before the promulgation of regulations and assures producers of a voice in the setting of standards. These are essentially the main purposes and objectives of the bill. (The bill follows:)

[S. 985, 89th Cong., 1st sess.]

A BILL To regulate interstate and foreign commerce by preventing the use of unfair or deceptive methods of packaging or labeling of certain consumer commodities distributed in such commerce, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Fair Packaging and Labeling Act".

PROHIBITION OF UNFAIR AND DECEPTIVE PACKAGING AND LABELING

SEC. 2. (a) It shall be unlawful for any person engaged in the packaging or labeling of any consumer commodity (as defined by this Act) for distribution in commerce, or for any person (other than a common carrier for hire, a contract carrier for hire, or a freight forwarder for hire) engaged in the distibution in commerce of any packaged or labeled consumer commodity, to distribute or to cause to be distributed in commerce any such commodity if such commodity is contained in a package, or if there is affixed to that commodity a label, which does not conform to regulations promulgated pursuant to this Act.

(b) The prohibition contained in subsection (a) shall not apply to persons engaged in business as wholesale or retail distributors of consumer commodities except to the extent that such persons (1) are engaged in the packaging or labeling of such commodities, or (2) prescribe or specify by any means the manner in which such commodities are packaged or labeled.

REGULATIONS TO BE PROMULGATED

SEC. 3. (a) As soon as practicable after the effective date of this Act, regulations shall be promulgated to

(1) require the net quantity of contents (in terms of weight, measure, or count, or any combination thereof) of consumer commodities to be stated upon the front panel of packages containing such commodities, and upon any labels affixed to such commodities;

(2) establish minimum standards with respect to the prominence of statements of the net quantity of contents (including minimum standards as to the type size and face in which such statements shall be made) appearing upon packages containing any consumer commodity and upon labels affixed to any such commodity;

(3) prohibit the addition to such statements of net quantity of contents of any qualifying words or phrases;

(4) specify such exceptions to the foregoing requirements as the promulgating authority may determine to be required by the nature, form, or quantity of particular consumer commodities, or by the customary mode of display of any particular consumer commodity for retail sale, except that no excep tion may be made if that exception would deprive consumers of reasonable opportunity to make rational comparisons between or among competing products;

(5) prohibit the placement upon any package containing such commodity, or upon any label affixed to such commodity, of any printed matter stating or representing by implication that such commodity is offered for retail sale at a price lower than the ordinary and customary retail sale price, or that a retail sale price advantage is accorded to retail purchasers thereof by reason of the size of that package or the quantity of its contents, except that no regulation promulgated under this section shall prevent any person

while engaged at any time in the sale of any consumer commodity at retail to ultimate purchasers thereof from placing upon any such commodity, or upon any package containing that commodity, any marking pertaining to the retail sale price of that commodity; and

(6) prevent the placement, upon any package in which such commodity is distributed for retail sale, of any illustration or pictorial matter which is likely to deceive retail purchasers in any material respect as to the contents of that package.

(b) (1) Regulations under this section shall be promulgated by

(A) the Secretary of Health, Education, and Welfare (referred to hereinafter as the "Secretary"), with respect to any consumer commodity which is a food, drug, device, or cosmetic, as each such item is defined by section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321); and

(B) the Federal Trade Commission (referred to hereinafter as the "Commission") with respect to any other consumer commodity.

(2) Such regulations adopted by the Secretary and by the Commission shall be uniform in content and application to the greatest practicable extent, as determined by consultation between the Secretary and the Commission.

(e) Whenever the Secretary (as to any food, drug, device, or cosmetic), or the Commission (as to any other consumer commodity) determines that additional regulations are necessary to establish or preserve fair competition between or among competing products by enabling consumers to make rational comparison with respect to price and other factors, or to prevent the deception of consumers as to such product, the Secretary or the Commission, as the case may be, shall promulgate under this subsection with respect to that commodity regulations effective to

(1) establish reasonable weights or quantities, or fractions or multiples thereof, in which that commodity shall be distributed for retail sale, except that no such regulation may be inconsistent with standards prescribed by the Secretary of Commerce before the effective date of this Act with regard to the sizes of containers used for the retail sale of any commodity, and no weights and measures shall be established in amounts of less than two ounces;

(2) prevent the distribution of that commodity for retail sale in packages of sizes, shapes, or dimensional proportions which are likely to deceive retail purchasers in any material respect as to the net quantity of the contents thereof (in terms of weight, measure, or count), except that where reasonable weights and measures have been established pursuant to the provisions of paragraph (1) of this subsection such regulations may not proscribe the use of package shapes which have been designed to exploit the unique advantages of any material for use in the production of packages of distinctive appearance;

(3) establish and define standards of designations of size (other than statements of net quantity of contents) which may be used to characterize quantitatively the contents of packages containing that commodity:

(4) establish and define the net quantity of any commodity (in terms of weight, measure, or count) which shall constitute a serving, if that commodity is distributed to retail purchasers in a package or with a label which bears a representation as to the number of servings provided by the net quantity of contents contained in that package or to which that label is affixed;

(5) establish and define standards for the quantitative designation of the contents of packages containing any consumer commodity of a kind the net quantity of contents of which cannot meaningfully be designated in terms of weight, measure, or count; and

(6) require (consistent with requirements imposed by or pursuant to the Federal Food, Drug, and Cosmetic Act, as amended) that sufficient information with respect to the ingredients and composition of any consumer commodity (other than information concerning proprietary trade secretK) be placed in a prominent position upon packages containing that commodity and upon labels affixed thereto.

PROCEDURE FOR PROMULGATION OF REGULATIONS

SEC. 4. (a) Before promulgating any proposed regulation under section 3 with respect to any consumer commodity, the Secretary or the Commission, as the case may be, shall (1) consult with other agencies of the Government having

special competence with respect to the subject of that regulation concerning the scope, application, form, and effect thereof, (2) publish in the Federal Register reasonable advance notice of intention to promulgate such regulation, and (3) accord to persons who would be affected thereby reasonable opportunity for consultation with respect to such proposed regulation.

(b) All regulations adopted under this Act shall be promulgated in conformity with the provisions of the Administrative Procedure Act. No regulation shall be promulgated for any purpose described in section 3(c) of this Act unless a public hearing has been conducted and opportunity for review has been accorded in conformity with the provisions of sections 7 and 8 of the Administrative Procedure Act.

(c) Any regulation promulgated under this Act may be modified by the promulgating authority, upon the initiative of that authority or upon application made by any person affected by that regulation, whenever such authority determines that such modification is necessary to conform to the requirements of this Act or to any change occurring in the method of packaging, labeling, distributing, or marketing of any consumer commodity.

(d) No regulation adopted under this Act shall take effect until a reasonable period of time (as determined by the Secretary or the Commission, as the case may be) has passed after the promulgation thereof to permit persons affected thereby to effectuate compliance with the provisions of such regulation.

(e) In carrying into effect the provisions of this Act, the Secretary and the Commission are authorized to cooperate with any department or agency of the United States, with any State, Commonwealth, or possession of the United States, and with any department, agency, or political subdivision of any such State, Commonwealth, or possession.

ENFORCEMENT OF REGULATIONS

SEC. 5. (a) Upon written request made, by the officer or agency authorized or directed by this Act to establish packaging or labeling regulations as to any consumer commodity of any class or kind, to any producer or distributor of such consumer commodity, such producer or distributor shall transmit promptly to that officer or agency a true and correct sample of each package and label used by that producer or distributor for or in connection with the distribution in commerce of any particularly described consumer commodity of that class or kind. Any person who fails to transmit any such sample to such authority within twenty days after receipt of such request shall be subject to a civil penalty of not more than $1,000 for each day of the continuance of such failure, except that the amount of such penalty may be compromised by such authority before the final determination of action for the recovery thereof. Such forfeiture shall be recovered in a civil action brought in the name of the United States in the district court of the United States for any judicial district in which such person resides, does business, or is found. Upon demand made by the defendant before the trial of any such action upon its merits, the defendant shall be entitled to have any issue of fact with respect to such failure determined by a jury. (b) Any consumer commodity introduced or delivered for introduction into commerce in violation of any regulation promulgated by the Secretary of Health, Education, and Welfare under this Act while that regulation is in force and in effect shall be deemed to be misbranded within the meaning of chapter III of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 333) shall have no application to any violation of any such regulation.

(c) Any violation of any regulation promulgated under this Act by the Federal Trade Commission while that regulation is in force and in effect shall constitute an unfair or deceptive act or practice in commerce in violation of section 5(a) of the Federal Trade Commission Act. The remedies provided by sections 4, 4A, and 16 of the Act entitled "An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes", approved October 15, 1914 (38 Stat. 730, as amended; 15 U.S.C. 15, 15a, and 26), commonly known as the Clayton Act, shall not be available to any person threatened with loss or damage, or injured in his business or property, by any violation of any such regulation under this Act.

REPORTS TO THE CONGRESS

SEC. 6. Each officer or agency required or authorized by this section to promulgate regulations for the packaging or labeling of any consumer commodity shall transmit to the Congress in January of each year a report containing a full and

complete description of the activities of that office or agency for the administration and enforcement of this Act during the preceding calendar year.

COOPERATION WITH STATE AUTHORITIES

SEC. 7. (a) A copy of each regulation promulgated under this Act shall be transmitted promptly to the Secretary of Commerce, who shall (1) transmit copies thereof to all appropriate State officers and agencies, and (2) furnish to such State officers and agencies information and assistance to promote to the greatest practicable extent uniformity in State and Federal standards for the packaging and labeling of consumer commodities.

(b) Nothing contained in this section shall be construed to impair or otherwise interfere with any program carried into effect by the Secretary of Health, Education, and Welfare under other provisions of law in cooperation with State governments or agencies, instrumentalities, or political subdivisions thereof.

SEC. 8. As used in this section

DEFINITIONS

(1) The term "commerce" has the meaning given thereto by section 4 of the Federal Trade Commission Act (15 U.S.C. 44).

(2) The term "consumer commodity", except as otherwise specifically provided by this paragraph, means any food, drug, device, or cosmetic (as those terms are defined by the Federal Food, Drug, and Cosmetic Act), and any other article or commodity of any kind or class which is customarily produced or distributed for sale through retail sales agencies or instrumentalities for consumption by individuals, or use by individuals for purposes of personal care or in the performance of services ordinarily rendered within the household, and which usually is consumed or expended in the course of such consumption or use. Such term does not include (A) any meat, meat product, poultry, or poultry product, (B) any commodity subject to packaging or labeling requirements imposed by the Secretary of Agriculture pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act, the provisions of the eighth paragraph under the heading "Bureau of Animal Industry" of the Act of March 4, 1913 (37 Stat. 832-833; 21 U.S.C. 151-157), commonly known as the Virus-Serum-Toxin Act; (C) any beverage subject to or complying with packaging or labeling requirements imposed under the Federal Alcohol Administration Act (27 U.S.C. 201 et seq.); or (D) any commodity subject to the provisions of the Federal Seed Act (7 U.S.C. 1551-1610).

(3) The term "package" means any container or wrapping in which any consumer commodity is enclosed for use in the delivery or display of that commodity to retail purchasers thereof, but does not include (A) shipping containers or wrappings used solely for the transportation of such commodity in bulk or in quantity to wholesale or retail distributors thereof, (B) shipping containers or outer wrappings used by retailers to ship or deliver such commodity to retail customers if such containers and wrappings bear no printed matter pertaining to any particular commodity, or (C) containers subject to the provisions of the Act of August 3, 1912 (37 Stat. 250, as amended; 15 U.S.C. 231-233), the Act of March 4, 1915 (38 Stat. 1186, as amended; 15 U.S.C. 234–236), the Act of August 31, 1916 (39 Stat. 673, as amended; 15 U.S.C. 251-256), or the Act of May 21, 1928 (45 Stat. 685, as amended; 15 U.S.C. 257-257i).

(4) The term "label" means any written, printed, or graphic matter affixed to any consumer commodity.

(5) The term "person" includes any firm, corporation, or association.

SAVING PROVISION

SEC. 9. Nothing contained in this Act shall be construed to repeal, invalidate, supersede, or otherwise adversely affect

(a) the Federal Trade Commission Act or any statute defined therein as an antitrust Act;

(b) the Federal Food, Drug, and Cosmetic Act;

(c) the Hazardous Substance Act; or

(d) any provision of State law which would be valid in the absence of such amendment unless there is a direct and positive conflict between such

amendment in its application to interstate or foreign commerce and such provision of State law.

EFFECTIVE DATE

SEC. 10. This Act shall take effect on the first day of the sixth month beginning after the date of enactment of this Act.

The CHAIRMAN. I want to state at the outset that we appreciate that we are in a very complex and economically sensitive field. The committee has the bill before it to listen to witnesses both pro and con, to receive suggestions, probably even to make substantial modifications, and to try to keep our eye on its goal and objective. I hope the witnesses will feel free to testify in a manner to give us the benefit of their experience and their views on this legislation.

It is not a new field. As I pointed out, this committee has passed many acts the chairman himself has been the author of some-in this whole field of consumer protection. There is enough interest to justify what we are doing here. I hope we will come out with something that is to the best interests of the consumer, the producer and interstate commerce in the United States.

The Chair would like to put in the record at this point comments received from the various Government agencies:

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,

Hon. WARREN G. MAGNUSON,
Chairman, Committee on Commerce,
U.S. Senate, Washington, D.C.

April 27, 1965.

DEAR MR. CHAIRMAN: This letter is in response to your request of February 23, 1965, for a report on S. 985, a bill to be known as the "Fair Packaging and Labeling Act" and popularly referred to as the "truth-in-packaging bill."

The bill-the outgrowth of extensive investigations and studies conducted for several years by, and under the leadership of, its principal sponsor, Senator Hart-would authorize this Department with respect to foods (other than meat and poultry products), drugs, devices, and cosmetics, and the Federal Trade Commission with respect to most other nondurable consumer commodities, to promulgate regulations designed to insure that such consumer commodities will be so packaged and labeled as to inform the consumer, in plain, meaningful, nonmisleading, and conspicuously placed and printed language how much is in the package and what the commodity consists of (short of revealing trade secrets); to prevent such disclosure from being counteracted by misleading pictures on the label or by a misleadingly shaped, formed, or sized container; to enable the average consumer to make quick and simple unit-price calculations, and to make ready comparisons between different packages of the same or different brands; and to prevent any label statements (other than accurate markings by the retailer) that state or imply that the consumer is getting a reduced price, or a bargain by reason of package size, which in the nature of things only the retailer could assert with knowledge as to its accuracy.

These purposes would be sought to be achieved through mandatory regulations on five matters specified in the bill-subject, as to some of these matters, to any exceptions that the nature, form, or quantity of particular commodities may require and that do not deprive consumers of reasonable opportunity to make rational comparison between competing products-and discretionary regulations on six other matters specified in the bill, which would be promulgated only if and as determined to be needed as to any consumer commodity to prevent consumer deception or to enable consumers to make rational comparison between competing products as to price or other factors. An article that violates such a regulation of this Department would, generally, be deemed to be misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act, while the violation of a regulation of the Federal Trade Commission under the bill would be deemed to constitute an unfair or deceptive act or practice in commerce in violation of section 5(a) of the Federal Trade Commission Act.