designed to hold 8 and 16 ounces as well as 71⁄2 and 15, and package designers have so testified.

Insofar as the provision relating to packages of sizes, shapes, or dimensional proportions which are likely to deceive, certainly packages can be designed which are convenient and distinctive without deceiving the consumer. And if deception is likely, they should not be used.

The bill as presently drawn does not allow proscribing the use of package shapes which have been designed to exploit the unique advantages of materials used for packages of distinctive appearance. There is nothing in bill that would prohibit convenience packaging, unique shapes, handles on bleach bottles, or instant cream containers that look like pitchers.

The borderline is "tendency to deceive," which industry witnesses have testified they have no intention of doing. They cannot consistently agree in principle on one hand and take an opposing position concerning implemetation of the principle on the other.

It has been testified, too, that the bill will discourage nonprice forms of competition by putting the emphasis on price rather than quality. This testimony misses the point entirely. The bill says nothing about quality, advertising, convenience, service, innovation, or any of the forms of nonprice competition.

It recognizes only that a first step in any buying decision must be the price. It is difficult to understand why any manufacturer would dispute this. Certainly in buying the raw ingredients that go into the finished product, they consider price of great importance.

Indeed, most State agencies purchase through competitive bidding. Price is important, and the purchasing agent for a governmental unit or a family has an obligation to take it into consideration when making a purchase.

Objection 5: The consumer is satisfied.-If this were true, the legislation would not be where it is today. Letters, newspaper stories, magazine articles, feed back from constituents eloquently present the unrest that is prevalent among American consumers concerning packaging and labeling practices. A steady stream of letters have contained literally thousands of examples of bad packaging practices. Consumer Reports, a leading consumer magazine with 1 million readers, tells us that there is more interest in this subject than in any other consumer issue during the 30-year history of their publication.

Also, industry sponsored a survey it says represents 51 million consumers. The method was to cite the industry views on a question before it was answered. Even at that, 20 percent of respondents-representing 10 million consumersexpressed concern over many of the practices that this bill is aimed at. That is not a negligible amount.

Even if consumers were not concerned, it is vital that they should be. This free enterprise system of ours is based on the assumption of a knowledgeable, rational consumer rewarding the most efficient producer-one who offers the best product at the best price. It is essential in the aggregate that the consumer act in this manner or else there is distortion in our free-market system of production and distribution.

To the extent this bill performs the function of assisting and encouraging the consumer to make this kind of informed choice, it assists the free enterprise system to perform properly and efficiently. If the consumer wants to choose one quality over another, fine. But first she must know how much that additional quality will cost her. It may be if the cost is too high, she will prefer an inferior quality. It may be if the cost is slight, she will prefer the superior product. It is elemental, however, that the initial information needed is price. The rest follows.

Quality requires a subjective determination. Computing price is an objective one and is thus suited to legislative assistance for the consumer. This bill admittedly considers price an important factor in any buying decision. To the extent that it is easily computed, more time can be devoted to quality considerations.

SPECIFIC PROVISIONS

I. Mandatory: These mandatory provisions are intended to apply to all commodities covered by the bill regardless of the kind, nature, or form of the commodity or package and label involved. The first three mandatory provisions, (a) (1), (2), and (3), apply to the method of presenting the net quantity of contents of the product involved.

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They require, first, that the net weight be stated upon the front panel of the package.

This provision is not intended to limit the manufacturer if he desires to put the net weight on more than one panel. It is intended only as a minimum requirement.

The definition "front" is left with the agencies involved, because of the many sizes and shapes in which products are packaged. Flexibility is thus insured to meet the unusual and differing kinds of packaging which it would be impossible for the Congress to anticipate and delineate in a bill.

The second requirement regarding the net quantity of content statement provides for the establishment of minimum standards with respect to its prominence (including minimum standards as to type size and face) (c)(2). The purpose of this requirement is the establishment of an objective measurement for this basic information as opposed to the subjective requirement of "conspicuousness" in the present law. It is intended that the size of the net-qualityof-content statement be reasonably related to the "front" area of the container or label involved and be of sufficient type size to make it plainly visible to the buyer with normal eyesight.

The Canadian Government has established such regulations and Mr. Roy Zimmerman of IGA Stores has stated that because IGA packages for both American and Canadian markets, it follows the Canadian regulations on many of its packages. He said:

"We have not found any difficulty in complying with the Canadian law, and we do feel it represents some improvement in the direction of consumer information."

The third requirement regarding net quantity of content prohibits adding to the net quantity statement any qualifying words or phrases. This section is aimed at such phrases as the "big 6 ounces" or the "giant half quart" (c) (3). It is intended that the net weight statement stand without qualification.

This subsection would prevent a manufacturer from gaining an unfair trade advantage by using adjectives that exaggerate the net contents statement. The extensive use of this practice is eloquent testimony to the undeserved benefits derived by the manufacturer who wishes to gain a competitive edge by suggesting that his "giant" half quart is larger than his competitors's 16 ounces. The practice has been uniformly condemned by the National Conference on Weights and Measures, by State officials, and by industry and consumer witnesses alike.

Subsection (a) (4) allows exceptions to the foregoing three requirements relating to net quantity of content. It is realized that flexibility is necessary because of the few exceptional circumstances where the nature, form, or quantity of a particular commodity of the manner in which it has been customarily displayed may not permit reasonable adoption of the foregoing requirements. A small lipstick tube or purse-size perfume bottle, or certain small bottles of spices, for instance, may be of such minute quantity, or so packed, as to make front panel net-quantity-of-content designation unreasonable.

The fourth mandatory provision (a) (5) requires regulations prohibiting the manufacturer from imprinting on packages printed matter stating or representing by implication that the commodity is offered for retail sale at a lower price than the ordinary and customary retail price, or that a retail sale price advantage is accorded the retail purchaser by reason of the size of the package or the quantity of its contents.

The subsection is concerned primarily with the so-called cents-off promotion and designation on packages or labels of economy size. Many abuses of this promotion were developed at the hearings, such as cents off being used to conceal a price increase, or the cents-off price being in fact the regular price, or economy sizes actually being more expensive than noneconomy sizes. Centsoff bargains proclaimed by manufacturers break down in the marketplace. Basically, the manufacturer only sets the price at which the jobber, wholesaler, or retailer may obtain the product for retail sale. He neither sets, controls, or in most cases has any influence over, the retail prices. Setting the retail price is the function of the retailer. Therefore, in the kinds of practices that this section would prohibit, the manufacturer is promising a retail price advantage on which he cannot deliver. He is, in effect, making a promise to the consumer on which the consumer cannot rely.

It has been suggested that such promotions should not be prohibited, unless they are actually false, and where false they violate existing law.

Inasmuch as there are approximately 274,000 retail outlets for food products in this country, and literally hundreds of cents-off deals and economy size designations in each, an army of investigators would be needed to police only this kind of practice. Certainly, the spectacle of an army of Government investigators moving into the markets to enforce the promise of a manufacturer which he can't control himself is not the answer to this problem.

It cannot be emphasized too strongly that this subsection does not apply to the retailer in his role of selling such commodity to the ultimate consumer. If, at that level of distribution, he wishes to put on sale or promote products in his retail outlet in whatever way he chooses, he is not prohibited from doing so under the provisions of the bill. Retail pricing is the retailer's function and this bill in no way intends to interfere with this function.

The question has been raised of whether the provisions of this subsection (c) (5), are applicable to chainstore operations in which the retailer also packages products to be sold in the retail outlet.

To the extent that a retailer packages his own products, he would be covered by the provisions of this subsection to the same extent as any other packager or manufacturer who distributes a commodity in commerce.

To do otherwise would give the chainstore retailer with an integrated operation including both packaging and selling an unfair competitive advantage over the independent proprietor of an ultimate sales outlet. Subsection (c) (5) does not intend to bring about such a disparity.

The last of the requirements under the mandatory subsection is contained in subsection (c)(6), and relates to illustrations or pictorial matter which are likely to deceive retail purchasers in any material aspect. This provision is aimed at deceptive illustrations and pictorial matter. It would require that the picture on the package bear a relationship to what a reasonably prudent consumer could expect from the contents, either as presently in the box or as may be reasonably expected from the finished product if the package contains raw products or ingredients.

DISCRETIONARY PROVISIONS

Subsection (c) contains the six areas where regulations may be promulgated only after necessity has been established. This is intended as a trouble-shooting subsection, giving standby authority to the Secretary of Health, Education, and Welfare (as to any food, drug, device, or cosmetic) and the Federal Trade Commission (as to any other commodity) to issue certain regulations. This may be done only when necessary to: (1) Establish or preserve competition between and among competing products by enabling consumers to make rational comparisons with respect to price and other factors, or (2) to prevent consumer deception. If the necessity is found to exist, the regulations could be issued, but only on a product-line basis and after the safeguards and procedures surrounding the issuance of the discretionary regulations had been followed.

The discretionary authority conferred in subsection (e) (1) to establish reasonable weights or quantities, or fractions or multiples thereof, in which a commodity shall be distributed for retail sale, is a reaction to the state of today's marketplace.

It has been established that some products are sold in so many weights, sometimes of varying fractional ounces, that rational comparisons become almost an impossibility.

Potato chips, according to a survey of the National Conference of Weights and Measures, are marked in 71 weights under 31⁄2 pounds compared to regular coffee which is in 9 weights. Fractional weights are often used and compound the difficulty of comparative price per ounce, and often their use cannot be justified by technological considerations. Comparing pounds, half pounds, quarter pounds, and so forth, removes confusion from the shopping process as opposed, for instance, to comparing three 6%-pound containers with two 8% for the same price.

This subsection is also aimed at the practice of reducing contents slightly without making the change clear to the consumer. Harrison Dunning, president of Scott Paper Co., pointed out that there is room for improvement in the field of package sizes where there are slight changes made in content without their being readily discernible to the consumer and suggested as an answer that when there was a change in net contents that it be large enough to be discerned.

This practice also has been referred to as "concealed inflation" because in many instances the price is actually raised on a per unit basis, although the

consumer thinks the price has been, in fact, lowered. The reason is that the package looks either the same size or larger and the total price is somewhat lower than the old price.

Reasonable weights and measures certainly have not injured the liquor industry.

The purchaser of liquor, for instance, knows that no matter what shape or size the package, he is still buying a pint, fifth, or quart and he can readily compare prices between competing fifths. It has been suggested that the housewife buying soap flakes at the supermarket should have the same protection against unfair and deceptive packaging practices as are now given her husband when he buys whisky at the liquor store.

It should be noted that the advantages of standardization in this country have been recognized since former President Herbert Hoover was Secretary of Commerce in 1926, and the Department of Commerce since that time voluntarily has established, with industry cooperation, 500 commodity standards. Department of Commerce spokesmen have described the many advantages to the producer, manufacturer, jobber, wholesaler, retailer, and consumer from its standardization program.

In this regard, the bill now provides that weights and measures can be not inconsistent with these standards. As a result, manufacturers adhering to commodity standards need fear no adverse results from this legislation.

The advantages both to the consumer and manufacturer from some standardization of weights and measures long has been recognized by the National Conference on Weights and Measures. Its law and regulation committee pointed out to the 48th annual conference that-"the consumer is best served and true competition exists when it is possible to make easy price comparisons. To facilitate this, the consumer must be able to make comparisons based on packages of like commodities packed in standard units."

Second, (e)(2) would prevent the distribution of commodities for retail sale in packages of sizes, shapes, or dimensional proportions which are likely to deceive retail purchasers as to the net quantity of contents.

This subsection is aimed at three practices: First is the slack-filled containerthe package that has more empty space than is reasonably necessary considering the nature of the product and the technological problems of fill. It seeks to limit, therefore, nonfunctional slack fill. Next, it is concerned with those packages wherein the dimensional proportions have become so distorted as to be likely to deceive the buyer as to the amount inside. Finally, it is concerned with those containers which are so shaped as to be likely to deceive the buyer as to the amount of content inside. This subsection is keyed to deception. It does not seek to interfere with convenience-packaging in any way, unless the package is likely to deceive.

Some have argued that prominent "net weight" should lessen the need for a provision preventing this type of deception.

But the point has been made that the inclusion of the weight marking should not be a license to permit the manufacturer to cheat the consumer by manipulating the size, weight, and shape of the package.

Because of the difficulty, if not impossibility, of computing price per unit because of some of the practices heretofore discussed, the ordinary purchaser is guided to a considerable degree by a visual appraisal of size by comparative dimensions of a package. J. L. Littlefield, chief, Foods and Standards Division, Michigan Department of Agriculture, has said:

"Manufacturers appear to be capitalizing on this knowledge of consumers' purchasing habits by utilizing containers which apparently enhance the size and hence the value of the commodity. Buying by container size, the consumer feels she is getting the most of a product. However, a small package right beside it may hold more product at a cheaper cost per unit."

A Government survey of consumer behavior also has indicated that a sig nificant number of purchases are based largely on container size.

This subsection, of course, does not go so far as to suggest or require standard sizes. But it does provide a means to prohibit these extreme examples that are likely to deceive.

Third, (e) (3) provides for the defining of size nomenclature relating to quantity such as "small," "medium," or "large." It is, for instance, concerned with confusions arising when one manufacturer's regular is greater than all of his competitors' "large," as was documented at previous hearings.

One witness testified that in most stores "large" is the smallest size of toothpaste.

The purpose of this section is to make size nomenclature meaningful as between competing products in the same product line so that one manufacturer's "king size" does not represent less than another manufacturer's “large." Should such standards be established on a product line basis, there is no compulsion for the manufacturer to use them if he chooses to use no size designation whatsoever. If, however, he wishes to use size designations, they would have to be those established for the range of quantity into which the amount within his package falls.

Fourth, (e) (4) would allow the establishment of serving standards. Ellen Ann Dunham, vice president of General Foods Corp., has stressed that in certain areas with certain products "servings" were important to consumers. Yet this serving information can vary markedly between competing brands of the same product even though the content may be the same. The manufacturer who wants to puff up his servings can thus obtain a competitive advantage over one who is more conservative in his claims.

The purpose of this subsection is to make serving information meaningful. For instance, most cookbooks consider a half cup as a serving. If a similar standard were adopted on a product line basis, and within a reasonable range to take into account varying product densities, then the consumer could depend on the serving designation to give him a measure to compare with competing products accurately.

It has been argued that serving information would be impossible to establish because of the varying tastes of consumers. One industry witness stated that what would be a serving to a midget would not be a mouthful to a giant. Aside from the fact that the National Canners Association has successfully established serving standards for scores of products, this argument evades the point.

It makes no difference whether the agency involved, after industry consultation, sets one-half cup or a cup as the standard. The important thing is that, once it has been established, a standard of comparison between the finished product of competing products will be available where none exists now. And the consumer will be assured that "serves two" on each of the competing packages means that the finished quantity of each will be the same. He has no such assurance under present marketplace conditions.

As in the size designations, a manufacturer need use no serving designations at all, if he does not desire to do so, regardless of whether they have been established.

Subsection (e) (5) relates to those products in which it is claimed that net weight or number designations are meaningless. For instance, Albert Halverstadt, vice president of Procter & Gamble, testified that in the field of detergents, a statement of weight is not significant. And this testimony was echoed by E. Scott Pattison, manager of the Soap & Detergent Association.

If net weight or number is not any guide upon which a consumer can base a price comparison, another standard is needed. This subsection would allow the establishment, in those few product lines where net weight or number are not significant. of a standard which would allow a rational comparison between the competing products in that line. For instance, a unit of cleaning powder could be established. Like serving information, it would make little difference whether that unit was keyed to a large wash or a small wash, a slightly soiled wash or an exceptionally dirty wash. The important point is that there would be a meaningful designation available for the consumer to assist in evaluating best buys in terms of price between competing brands.

The last of the discretionary sections, (e) (6), would allow the agencies involved to require that sufficient ingredients or composition information be placed conspicuously on the package, consistent with the Federal Food, Drug, and Cosmetic Act. The reason for this subsection is to allow the consumer to know what he is buying when necessary. The present law requires that information as to ingredients be placed only on food packages (and percentages are not required, although in some cases they might be significant) and to a limited extent, active ingredients, on proprietary drug packages. There may well be other classes of commodities covered by the bill where either ingredient or composition information are matters of importance to the consumer who wants to choose intelligently between competing products. (For equally compelling reasons, proprietary trade secrets are exempted from this provision.)