and deceptive. The association commends Senator Hart for his leadership in promoting truth-in-packaging." Our four-point legislative program was submitted to the candidates for the office of Governor, and I am pleased to transmit the reactions of two leaders: The attorney general, Hon. William M. Ferguson, said: "Packaging-I would support truth-in-packaging legislation. I fully understand the situation as it exists today and although I have done what I could, the law of Kansas is not sufficiently developed in this area to be effective. I feel that legislation regulating methods of packaging and merchandising is long overdue. I trust that these comments will be of some assistance to you and your organization." William H. Avery concurred with our objectives, but said he was not prepared to concur with the suggested procedures. "We have not had an opportunity to study S. 985 and are not in position to endorse any specific bill. However, you may be sure of two things. First, we want an effective thrust in the direction of improved labeling of consumer goods and do not consider existing conditions to be adequate. Second, we respect your legislative talents and ability, and expect that you shall gain from the hearings such information as may prove helpful to improve the bill so it is both a practical and effective bill; one which can be administered economically and effectively. Sincerely yours, RICHARD L. MORSE, President-Elect, and Chairman of the Legislative Committee. MANHATTAN, KANS., April 30, 1965. Senator JAMES B. PEARSON, U.S. Senate, Washington, D.C. On DEAR SENATOR PEARSON: I have read the report of the Subcommittee on Antitrust and Monopoly on the truth-in-packaging bill and have noted two conflicting claims made to refute the need for more Federal legislation in the area. page 58 Federal agencies are characterized as having such a thirst for power that "their thrust is to extend their powers to the furtherest reach." Yet, on page 74, Mr. Dixon is quoted to the effect that the Food and Drug Administration and the Federal Trade Commission have not enforced existing statutes to the fullest, implying that no new legislation is needed; only more vigorous and imaginative enforcement of existing statutes is needed. Both of these cannot be true, and I trust you will find out which of these two statements is correct. I would hope, for example, that you would inquire of the Federal Trade Commission what the cost would be of achieving through effective enforcement of its present statutes a level of uniformity in disclosure contemplated by effective enforcement of the mandatory provisions of section 3(a). That is, what might it cost to achieve the level of uniformity in disclosure on market consumer products under existing FTC and FDA legislation as could be achieved under section 3 (a) of S. 985? Or, put another way, would not passage of S. 985 result in accomplishment of the objectives of existing legislation at less cost to the taxpayer and with less delay? There is another cost I wish you would consider as you hear the testimony of experts: This is the cost of the disappointed consumer, who either internalizes her disappointment and remains quiet, or, if she has the power and capacity to rebel, increases the cost of merchandising with returned merchandise and letters of complaint. A labeling problem which brought disappointment to my family and which we did not "charge" back to the retailer or the marketing system is represented in the two slides: one shows my daughter in a sleeveless blouse to which is affixed the label that was visible to my wife when she purchased the blouse. The other slide shows the package as purchased by my wife. You will note the blouse on the label has short sleeves yet the product was labeled "sleeveless." The words are correct; but the picture is wrong. It is the picture that caught my wife's eye. The package was sealed so my wife did not feel free to inspect the blouse. As I understand the bill, such a practice would be prohibited at least it would have been under the former S. 387. Perhaps such a practice is not in violation of present law. If so, I am dismayed that the practice is allowed to exist. But I am not surprised, for I know of the tremendous cost involved in item-for-item case-by-case administration. Neither I nor the FTC have time or resources to rectify such careless or abusive trade practices under present legislation, so we paid the price of buying a blouse we would not have purchased had it been correctly labeled. With this blouse case in mind I hope you will review the bill to make sure that the words "in any material respect" and "likely to deceive" will not place the consumer in the position of having to engage in extensive legal procedures (sec. 3(a)(6)). These words add a needless burden, it seems to me. I prefer the wording under S. 387 for it would cost less to administer and be more effective. Until the Congress is willing to give the FTC temporary injunctive power, the balance of power lies with the violator who can use delaying tactics until his investment in the deceptive practice is maximized. Justice then is allowed to step in to "correct" what then has become a noneffective practice. The violator has long ceased before the cease-and-desist order is issued. Two years ago a merchant called to my attention another case of deceptive labeling that he felt unjust. Although he sold the product, the samples from which he made his selections at wholesale were not labeled, so he was not aware of the problem until he stocked the item at retail. Both of us were dismayed when we learned from the FTC that we would need to prove that a significant number of consumers were actually deceived by this labeling. I close with a plea for Federal legislation on two grounds: First, people and goods travel in interstate commerce; national standards are appropriate. Secondly, adequate State legislation is encumbered by the pressure to conform to the practices of the other States. For example, Kansas is considering regulation of the minimum height of numbers and letters on packages of commodities. The minimum proposed is one-sixteenth inch. Some of the elderly consider this too small and are urging one-fourth inch. Despite sympathy their need for the more legible type size, the overwhelming fear is that such a regulation would place Kansas out of step with the other States and jeopardize interstate commerce. Thank you for giving this bill your most careful attention. I hope you will choose to feature this topic for one of your "Reports to Kansas." Sincerely, RICHARD L. D. MORSE. RESOLUTION ADOPTED BY MASSACHUSETTS CONSUMER ASSOCIATION Spring conference at Framingham, Mass., May 15, 1965 Whereas present law, both State and Federal, does not assure consumers of truth in labeling and packaging of products; and Whereas deceptive packaging and marketing of products makes it impossible for consumers to make intelligent choices in retail markets; and Whereas Senator Hart has introduced legislation at the Federal level and hearings are now being held on this subject: Now, therefore, be it Resolved, by this annual spring conference of the Massachusetts Consumer Association, That full support of this association for Senator Hart's bill, S. 985, be conveyed to every member of the Massachusetts congressional delegation with a request for a vote and support for this piece of consumer protective legislation. CHAMBER OF COMMERCE, Portsmouth, Va., May 20, 1965. Senator A. WILLIS ROBERTSON, Washington, D.C. DEAR SENATOR ROBERTSON: The board of directors of the Portsmouth Chamber of Commerce, after thorough investigation and discussion voted unanimously to oppose S. 985, packaging and labeling control bill. Our congressional action committee has conducted several meetings with local organizations, such as the Portsmouth Women's Club, and after explaining the import of the bill the opposition to the proposed legislation was unanimous in every instance. We recommend, in lieu of S. 985, that sufficient funds be made available to the Food and Drug Administration (FDA) and the Federal Trade Commission (FTC) to permit these organizations to enforce existing legislation to correct abuses that may exist. It is requested that you express our opposition to this legislation to members of the Senate Commerce Committee which is currently conducting hearings on this bill. In any event, we sincerely hope that you will oppose this bill should it be brought to a vote in the Senate. Chairman, Senate Commerce Committee, DEAR MR. CHAIRMAN: I am enclosing a self-explanatory letter from Mr. Ernest A. Bradley, the district sales manager of the California Packing Sales Co., of Mobile, Ala. I wanted to make his views available for the use of your committee in connection with S. 985. With best wishes, I am, JOHN SPARKMAN. CALIFORNIA PACKING SALES Co., Hon. JOHN J. SPARKMAN, DEAR SENATOR SPARKMAN: After a careful review of the Fair Packaging and Labeling Act, S. 985-now pending before the full Senate Commerce Committeeit is felt that there is little change in substance or approach from the bill reviewed by the Judiciary Committee during the previous Congress. Our basic contention remains that ample provisions and safeguards already surround the production and marketing of processed foods and further that S. 985 is fundamentally wrong in assuming that the consumer is confused and deceived. Here in the Mobile district sales office we service consumers with a full line of Del Monte products and are continually confronted with the market pressures among competitive items. Many of our products, such as tomatoes, are canned in many styles-juice, sauce, paste, catsup, and soup. Our valuable peach crop is successfully merchandized also in several styles. This has been done to stimulate imagination and increase consumer acceptance. Style changes and packaging practices sometimes involve changes in specific gravity of the product but do not intimate deliberate intent to confuse or deceive. For example, canned tuna may be grated, chunk style, or solid pack. In each instance the weights of these products may vary, but the identical can size is maintained rather than multiplying the number of can sizes on the shelf to accommodate fractional weight differences in the product. The marketplace should be the determining factor reflecting the consumer's demand rather than have a bureaucracy decide what the consumer should have. Any governmental agency with the ultimate authority to establish weights or quantities in which a commodity must be packed would impose upon processors a multitude of restrictions as to size, shape, dimension, and weight which they may use in packing their commodities. S. 985 would even establish individual serving sizes. This is about as difficult to standardize as it would be to regulate tastes and appetites. Senator Hart's bill indicates there is legislative need with regard to packaging and labeling practices that might possibly mislead someone, somehow, somewhere. We do not think so. Our company is continually and voluntarily reviewing its labels to determine conformance with the legal requirements of the Federal Food and Drug Act, and the industry's voluntary labeling program already recommends that the net contents statement appear on the front display panel of the label. Since 1925 when the "Simplified Practice Recommendation for Cans for Fruits and Vegetables" was issued by the National Canners Association in cooperation with interested Government agencies, and again in 1934 when canners voluntarily adopted a descriptive labeling program, which detailed all the objectively determinable characteristics important to consumers, the National Canners Association has continued to set forth standards in the industry's labeling practices which consistently go beyond existing legal requirements. Last year Senator Hart's subcommittee which explored the industry's packaging and labeling program led the Senator to comment, "Over the years the consumer's interest has been of real concern in the canning association's development program." Subsection 3 (c) (1) of bill S. 985 falls short of meeting industry requirements for not only is the language vague and imprecise, but under its most favorable interpretation it would mean that only the can sizes presently recommended by the canning industry-Commerce Department voluntary agreement could be used. Thus new products, innovations in packaging, etc., would be subject to all of the provisions of the bill. Do we really need more laws or more diligent enforcement of existing laws? It seems apparent that every area of S. 985 is presently covered by the Food and Drug Administration and the Federal Trade Commission. The 1965 version of the Hart bill has a new member-S 985-and a new namethe Fair Packaging and Labeling Act and it will presumably have a new legislative parent-the Senate Commerce Committee-but in all other respects the new bill is virtually the same as the bill that was pending before the Senate Judiciary Committee for over a year in the last Congress. S. 985 also retains the requirement that upon written requests manufacturers must submit samples of all their packages and labels to the enforcement agency, subject to a civil penalty of $1,000 for each day of continuing delay. The few changes that have been made in this year's bill are limited in scope, uncertain in effect, and in most instances could achieve no conceivable consumer benefit. Most sincerely, ERNEST A. BRADLEY, E. I. DU PONT DE NEMOURS & Co., Hon. WARREN G. MAGNUSON, Washington, D.C. DEAR SENATOR: Attached is a copy of a statement in connection with S. 985 which we would appreciate having included in the record of hearings on the bill. Best regards, Hon. WARREN G. MAGNUSON, Chairman, Committee on Commerce, Washington, D.C. ROBERT F. KELLY, Director, Legislative Services. E. I. DU PONT DE NEMOURS & CO., INC., DEAR SENATOR MAGNUSON: The purpose of this letter is to express our deep concern over the provisions of S. 985, 89th Congress, which is now pending before your committee. We understand that the proposed legislation would (1) require that net quantity of contents be stated on the front panel of packages and on labels; (2) establish "minimum standards" on "prominence of net quantity" statements "including minimum standards as to the type size and face"; and (3) prohibit addition of "disqualifying words or phrases" to the net quantity statement. In addition, the bill would prohibit "cents off" labels added by the manufacturer and "any illustration or pictorial matter which is likely to deceive retail purchasers in any material respect" in regard to package contents. Under the legislation, the appropriate Federal agency (the Federal Trade Commission or the Food and Drug Administration) would have the discretionary power to establish "reasonable weights or quantities for packages" on a product-by-product basis; bar packages whose size, shape, or proportions are "likely" to be deceptive; standardize size terminology; and require that "sufficient information" on ingredients be put in a "prominent position" on packages and label. The Du Pont Co. is probably best known as a supplier of basic fibers and chemicals to other processors. However, Du Pont also markets consumer goods in several fields, including paint, antifreeze, and household and automotive specialties. The latter include waxes, sponges, cleaners, and motor additives. this aspect of our business approximates $100 million annually, S. 985 would have a measurable impact on Du Pont's current operations. Since The supporters of S. 985 and its predecessors in earlier Congresses argue their cause as though this proposal would not have any effect beyond giving "the consumer sufficient meaningful information so that she may be able to compute the price or quantity of a (consumer) product." (See, for example, hearings before the Subcommittee on Antitrust and Monopoly of the Committee on the Judiciary, U.S. Senate, pursuant to S. Res. 56 on S. 387, 88th Cong., 1st sess., p. 265. S. 387, of course, was a very similar bill in the preceding Congress). After all, say these supporters, there is nothing wrong in preventing, by Federal regulation, the distribution of products in packages which by their size, shape, or dimensional proportions may tend to deceive (ibid., p. 312). The argument continues that industry should be in favor of the legislation and the standardizing regulations which will be promulgated in the wake of its passage, since the regulations will lead to certainty. "You know ahead of time * ** what you can and cannot do under the terms of this bill and, frankly, this is something which I thought business would welcome." (Ibid., pp. 320, 324.) The fact is, however, that this bill goes beyond the "weights and measures" type of legislation already familiar at the State and local level and puts in question some of the basic relationships between our Federal Government and its people. In our view, proponents of restrictive legislation should have the laboring oar to show that there is a need commensurate with the proposed restriction. I. WHAT WILL BE THE ADVERSE CHANGES BROUGHT ABOUT BY ENACTMENT OF S. 985? 1. The first important change which will be worked by S. 985 is that it will shift the basis of the Federal Government's supervisory activities over large areas of business from a prohibitory to a "licensing" basis. Instead of facing specific punitive action against specific wrongful conduct, S. 985 will authorize the Government to initiate a program of preapproval, supression, and censorship. Thus far, the Nation has proceeded on the theory that freedom to devise new marketing techniques and develop new packaging concepts contributes to our steadily advancing economic life. Until now, the Federal Government has permitted industry to innovate, and contended itself with punishing commercial activities which were fraudulent or deceitful. When a punitive action was undertaken, there were hard facts available as to the nature of the offensive commercial activity or package and the effect which it had in the marketplace. A reasoned judgment was then made on the basis of realities rather than possibilities or suppositions. The present prohibitory system works well. Testimony has been presented at these hearings showing that instances of actual deception are rare. The most commonly cited figures are those submitted last year by Commissioner Larrick, Food and Drug Administration, showing that his agency found only 23 instances of inconspicuous labeling among over 15,000 samples of packaged products (hearings, supra, p. 133). Moreover, the power exists to reach and punish these unusual deceptive situations. Any lingering doubt as to the power of the FTC to reach, in its sphere of activity, the silent affirmative representations of deceptive packaging cannot survive the Papercraft proceeding. Similarly, the Food and Drug Administration presently has the statutory power to prohibit containers that are so made, formed, or filled as to be misleading. If the existing legislation has been ineffective for some reason, then strengthening of the agency's powers to reach deception may be considered. However, an inability to deal with deception is not a compelling reason to grant the power to forbid tendencies or 1 In Papercraft (FTC docket No. 8489, CCH Trade Reg. Rep. No. 16,721), the respondent packaged 20-inch rolls of gift wrapping paper in boxes 24 inches long. The rolls were displayed to the public through a cellophane window 19 inches long. Thus, there were 2 inches of hidden empty space at each end of each box. "For a seller to package goods,' said the Commission. "in containers which-unknown to the consumer-are apparently oversized, *** is as much a deceptive practice, and an unfair method of competition, as if the seller were to make an explicit false statement of the quantity or dimensions of his goods. *** [T]he Commission * ** is concerned with all forms and methods of deceptive packaging of goods in commerce." 2 Hearings, supra, p. 355. |