sideration on the part of the members of this association to the extent that their good will and prestige might be seriously affected by a recurrence of the disasters resulting from highly flammable apparel.

The enactment of Federal legislation at this time also becomes compelling because of the diversity of local legislation already in effect or pending. The evils attendant upon separate local legislation are apparent with different test methods, variable standards and regulations, and different enforcement agencies. This situation becomes especially acute in the case of the textile and apparel industries where their products are distributed throughout the United States and are offered for sale at retail in every city, town and village in the country. Federal legislation is essential to avoid chaos and disruption to commerce and to provide complete uniformity in administration and eniorcement.

We endorse specifically H. R. 3851 and H. R. 4159. We feel that it is indispensable to such legislation that the standard of flammability be set out in terms which are clear and understandable to members of the affected industries. The provisions of Section 4 of each bill in relating the standard of flammability to Commercial Standard 191-53 as promulgated by the Secretary of Commerce accomplish this objective admirably. The test methods and standard prescribed in these standards were evolved after long and careful study and consultation with industry. Apart from the fact that they represent an objective and accurate procedure, they are also well understood by industry.

I should like to comment on two other features of these bills.

First, under Section 8, provision is made whereby a person shall be relieved of the penalties under the act if he has received a guaranty from the manufacturer or supplier of the fabric or wearing apparel to the effect that the fabric is not highly flammable within the meaning of Section 3. We would only suggest that in its report of these bills, the committee indicate that the Regulations of the Federal Trade Commission should establish procedures for furnishing a continuing guaranty covering a specific type or line of fabrics. The report should make clear that the provisions of Section 8 are not intended to be so limiting as to require a separate guaranty in connection with each invoice and shipment of goods. The latter procedure could involve an overwhelming burden. Secondly, we urge that the suspension of the effective date for a period of twelve months, as provided in these two bills, be retained. This period will be required in order to allow for the liquidation of inventories at all levels of trade. In this regard, it might be noted that the Commercial Standards of Flammability are in effect and being applied so that the interests of the public are protected.

In closing, I must again urge that enactment of this legislation be expedited. Mr. HINSHAW. Is Mr. Fickett present?

Mr. FICKETT. Here, sir.

Mr. HINSHAW. Does he wish to be heard?

Mr. FICKETT. Please.

Mr. HINSHAW. Mr. Baker will submit a statement.

Are there any questions to be asked of Mr. Freedman?

Thank you very much, Mr. Freedman, for your presentation. We

have accepted Mr. Kushel's statement for the record.

(The following letter was later received from Mr. Freedman:)

Re voluntary standards and constitutionality
Hon. CHARLES WOLVERTON,

MACY'S,

New York, May 1, 1953.

Chairman of the House Interstate and Foreign Commerce Committee,

New House Office Building, Washington, D. C.

DEAR CONGRESSMAN WOLVERTON: In a way, it was unfortunate that I presented my testimony on behalf of the New York retailers before your committee in your absence.

Since the question of constitutionality had arisen, I wanted to present certain information concerning this matter which I thought would have been appropriate if the question of constitutionality had been directed to me-unfortunately, it was not. I believe that I have certain information which may assist you and your committee in the solving of the dilemma, and I give it to you for what it may be worth.

Section 501 (b) of the Federal Food, Drug, and Cosmetic Act recognizes three sets of standards that are developed by non-governmental agencies as official compendiums. This section further contains the following provision: "Such determination as to strength, quality, or purity shall be made in accordance with the tests or methods of assay set forth in such compendium, except that whenever tests or methods of assay have not been prescribed in such compendium, or such tests or methods of assay as are prescribed are, in the judgment of the Administrator, insufficient for the making of such determination, the Administrator shall bring such fact to the attention of the appropriate body charged with the revision of such compendium, and if such body fails within a reasonable time to prescribe tests or methods of assay which, in the judgment of the Administrator, are sufficient for preparations of this paragraph, then the Administrator shall promulgate regulations prescribing appropriate tests or methods of assay in accordance with which such determinations as to strength, quality, or purity shall be made."

I suggest, therefore, that section 4 (b) of H. R. 3851 be modified to read as follows: "When in his opinion, the commercial standard does not contain adequate test methods, procedures, or standards provided in this act for determining the rapid and intense burning of wearing apparel and fabrics, the Secretary of Commerce shall bring such fact to the attention of the standing committee appointed by him coincident with the establishment of the commercial standard, and if such standing committee fails within a reasonable time to prescribe test methods, procedures, or standards, which in the judgment of the Secretary of Commerce are adequate, then the Secretary of Commerce shall promulgate adequate test methods, procedures, and/or standards which are adequate." Enclosed is a copy of Pamphlet S. R. A. F. D. C.-1, Rev. 3, entitled "Federal Food, Drug, and Cosmetic Act and General Regulation for Its Enforcement," on page 21 of which is contained section 501 (b) previously referred to (filed with committee).

The official compendiums referred to are the United States Pharmacopoeia, the Homeopathic Pharmacopoeia, and the National Formulary or any supplements to any of them (see sec. 2 (g) of the Food and Drug pamphlet, and sec. 2 (j), p. 4 of that pamphlet. These are voluntary standards.)

Dr. Paul B. Dunbar, then Commissioner of Foods and Drugs, Federal Security Agency, in an address before the United States Pharmacopeial Convention in 1950, made the following statements. I quote:

"Mr. Walter G. Campbell, then head of the Food and Drug Administration, addressed the 13th meeting of the United States Pharmacopeial Convention on May 14, 1940. His subject was "The Relation of the Pharmacopeia to the Food and Drug Administration.' His address is thoroughly applicable today and I believe should be required reading by those who will guide the work of revision during the ensuing 10 years. Mr. Campbell pointed out that "In a great variety of laws Congress, in order to secure the effects intended, has found it necessary to use agencies outside the legislative branch of the Government by vesting discretion in them to "fill up the details" by determining some fact or by prescribing administrative rules and regulations.' The Supreme Court has said: "Indeed, it is not too much to say that a denial to Congress of the right, under the Constitution, to delegate the power to determine some fact or the state of things upon which the enforcement of its enactment depends would be to stop the wheels of government, in the conduct of public business.'

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"The legislative cannot undertake to deal adequately with the details of the innumerable complex scientific questions involved in establishing legislative standards for food and drug products * * *."

"There is no other instance within my knowledge in which a nongovernmental organization has been authorized by the Congress to establish the basis upon which courts will be called upon to confiscate property or punish individuals. In his scholarly essay on the Development of Pharmacopeias, Prof. George Urdang says that 'the United States represents the only greater political unit in which the way of preparing a legally recognized pharmaceutical standard has not been dictated by Government rule.'

"Mr. Campbell pointed out in his address that although statutory checks and safeguards are incorporated in the Food, Drug, and Cosmetic Act for the executive branch of the Government in setting up standards and regulations, no such safeguards are thrown around the pharmacopeial revision procedure. "The United States Pharmacopeial Convention,' says Mr. Campbell, '* * * functioning through its revision committee, is given unlimited latitude in the determination of the manner in which investigations shall be made, facts acquired, notice given,

hearings held, and conclusions announced; and of particular importance, it can decide the degree to which any or all of these considerations shall be expedited.' The value of such freedom of action in the execution of a comprehensive program of work cannot be easily overestimated. But in passing it should be said that the silence of the statute on procedural and review requirements with respect to the formulation of U. S. P. standards does not mean that such activity should or could be carried on wihout due regard for law. Unquestionably the courts can consider such standards and pass upon their validity. While I know of no case in which a drug standard has been successfully attacked, I am certain that if upon judicial review the standard were shown to be unreasonable, scientifically unsound, or capriciously and arbitrarily arrived at, it would be declared to be invalid."

The Pharmacopeial Convention, which revises and publishes the Pharmacopeia of the United States, is composed of delegates representing colleges and schools of medicine and colleges and schools of pharmacy; State and Territorial medical associations; State and Territorial pharmaceutical associations, and numerous societies, including the American Drug Manufacturers Association; also represented are various Government agencies.

I trust that the above information will be of value to you. If I can be of any further service, please do not hesitate to call upon me.

Sincerely yours,

EPHRAIM FREEDMAN, Director, Macy's Bureau of Standards.

Mr. HINSHAW. Is Mr. Henry C. Ball here? (No response)

Mr. HINSHAW. Mr. Donald C. Hays?

STATEMENT OF DONALD C. HAYS, COUNSEL, SOCIETY OF THE PLASTICS INDUSTRY, INC., NEW YORK, N. Y.

Mr. HAYS. Here, Mr. Chairman.

Mr. HINSHAW. Have you a statement that you want to present? Mr. HAYS. Yes, I do, sir, if you please.

Mr. HINSHAW. Are copies available?

Mr. HAYS. Copies have already been distributed, I believe.

Mr. HINSHAW. I will have to ask you to be as concise as possible. We have heard some arguments. If there are any new arguments, we want to hear them. Repetition is not going to add to the proceedings at the present time.

Mr. HAYS. I shall keep it down, Mr. Hinshaw. It is only three pages, and I will skip right along.

My name is Donald C. Hays. I am counsel for the Society of the Plastics Industry.

The Society of the Plastics Industry, Inc., is a national technical society, a trade association composed of members from all parts of the country who manufacture plastics materials or process them.

The Society is composed of over 700 company members. The membership of the Society includes large, small, and medium-sized companies. The membership consists of firms which are the leading producers of plastic raw materials and plastic products within the plastics industry in the U. S. A.

A number of plastic manufacturers produce plastic film by calendering, casting, or extruding which in turn is used in the manufacture of various articles of wearing apparel such as raincoats, capes, hoods, pants and aprons. This accounts for our interest in legislation governing the movement of inflammable fabrics in interstate commerce. It is estimated that the production of vinyl film and sheeting has increased from 15 million pounds in 1945 to 400 million pounds in 1952.

While all of this material did not go into wearing apparel, it demonstrates the rate of growth of the industry and in turn reflects the proportionate increase in use of these materials for apparel.

In March 1947 when the Congress had up for consideration a similar measure, Foster D. Snell, representing the Society, appeared before the Interstate and Foreign Commerce Committee of the House of Representatives and commented on H. R. 1111 suggesting that certain specific changes be made in that proposed bill.

On May 26, 1952, William T. Cruse, the executive vice president of the Society, appeared in its behalf before the Interstate and Foreign Commerce Committee of the Senate approving S. 2918.

While the Congress took no action at that time on the "textile flammability" legislation in light of the tragic accidents which have occurred in the last several years, the need for such legislation is clearly indicated.

Since 1945, substantial quantities of vinyl film have been made into rainwear and other garments. These have been sold by retailers in every State in the Union. Even though they have been widely used by men, women and children in every corner of the Nation, we have no record of any instance where they caused bodily harm because of their "burning characteristics." Indeed, many of these materials will not support combustion and those that will burn are difficult to ignite and are classified as self-extinguishing.

Nevertheless, a careful study and analysis has been made of the present proposed bills and it is the consensus of opinion of those of us who have studied them that such legislation is desirable. The Society of the Plastics Industry is conscious of the need of such legislation. It feels that these bills fulfill the requirement. It is particularly desirable from the standpoint of all concerned that any legislation affecting this subject be national in its scope, rather than to have local legislation by the several States. Lastly, in light of the fact that the bills define the term "commercial standard" as a trade standard for flammability established according to the procedure of the Department of Commerce, it is felt that proper and adequate tests will be given to the several materials covered by the act. The Society of the Plastics Industry has recently promulgated through the Department of Commerce, a commercial standard for vinyl plastic film TS-5065 which includes a test of standard of flammability. The standard has been accepted by more than 65 percent of the industry and so will ultimately receive a permanent designation.

The Society, therefore, feels that the proposed legislation provides every possible precaution to safeguard the public's welfare and provides manufacturers and converters of materials covered by the proposed bill with a tool to measure the suitability of material used in wearing apparel.

Now, I believe the committee has asked: What would the feeling be of certain segments of the industry if, in taking these last three bills, you just adopted 4 (a). The Society of the Plastics Industry would approve of that, that is, with the omission of 4 (b), if, however, you would be good enough to consider adding to the words, adding to 4 (a), "or in any other applicable commercial standard promulgated by the Secretary of Commerce."

Now, the point in that is this, gentlemen. The emphasis so far has been on, and in fact you have only heard about, one standard, and that

is the standard of flammability of clothing textiles. Now, the Society of the Plastics Industry, and particularly the manufacturers of vinyl sheeting, decided that the test of flammability as applied to vinyl sheeting was not sufficiently rigid. There wasn't a high enough standard. So that is why we have worked out a greater standard, and that standard has been accepted. And we also want to keep out the fly-bynighter and the guy who is operating on the outside of the fringe, and that is why we do feel that the standard should not be limited just to the one standard of flammability of clothing textiles. There may be other materials invented as time goes on, which should have their own commercial standard, that is, the applicable standard. Mr. HINSHAW. Thank you, Mr. Hays.

Are there any questions? Mr. Heselton?

Mr. HESELTON. I regret I was called out, so that I did not hear your full statement, but I think you are dealing with a matter that I wanted someone to discuss briefly. When our colleague, Mr. Johnson of California, was before the committee, he submitted two letters. both dated in April of 1952, from the State fire marshal of California. They are rather long, so that I would like to try to pin it down.

They have their California law, which he indicates with some statistics has been working out quite satisfactorily. But he did point out certain things that are of interest. Perhaps I could read these two paragraphs.

Referring to the standard that had been submitted by Mr. Buck to him, in a letter dated March 25, 1952, he says that these proposed standards go into considerable detail on the classification of materials from a standpoint of flammability but they will not classify a material as being "highly flammable" or displaying "rapid and intense burning" unless the fabric burns the 5 inches in less than 4 seconds on a 45° angle, and even then the material must ignite. A very serious weakness in the standard, he says, is the total lack of any method of determining the low ignition hazard of certain types of wearing apparel materials. [Reading:]

I

I refer to such materials as unsupported plastic film and plastic coated fabrics, such as were sold promiscuously in California prior to the adoption of our standards, and which resulted in the deaths of several children. have knowledge of several different materials of this type which would be extremely hazardous; yet these commercial standards do not classify them as exhibiting "rapid and intense burning."

Do I understand that in California this particular material described as unsupported plastic film and plastic coated fabrics was included in the standards they had there?

Mr. HAYS. I know nothing about the California Act or the method of standards, but I think that that does point up the thing that the plastic industry is trying to get at, namely, that we do not think that the tests of flammability for ordinary clothing textiles go far enough, as far as plastics are concerned. And that is why we have devised our own standard, which is more rigid. We feel that the public gets greater protection if plastics have an even more rigid. test, which is the one that the Department of Commerce has accepted. and is now known as TS-5065. It is just waiting for final approval by industry.

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