FLAMMABLE FABRICS MONDAY, MAY 26, 1952 UNITED STATES SENATE, COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, Washington, D. C. The committee met, pursuant to call, at 10 a. m., in room G-16, United States Capitol Building, Senator Edwin C. Johnson (Colorado) (chairman) presiding. Present: Senators Johnson (chairman), and Hunt. Also present: Edward Jarrett, clerk. The CHAIRMAN. The committee will please come to order. The hearing is on S. 2918, and that will be made a part of the record at this point. (S. 2918 is as follows:) [S. 2918, 82d Cong., 2d sess.] A BILL To prohibit the introduction or movement in interstate commerce of articles of wearing apparel and fabrics which are so highly flammable as to be dangerous when worn by individuals, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SHORT TITLE SECTION 1. This Act may be cited as the "Flammable Fabrics Act". SEC. 2. As used in this Act DEFINITIONS (a) The term "person" means an individual, partnership, corporation, association, or any other form of business enterprise, engaged in the manufacture or sale of articles herein affected. (b) The term "commerce" means commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign nation. (c) The term "Territory" includes the insular possessions of the United States and also any territory of the United States. (d) The term "article of wearing apparel" means any costume or article of clothing worn or intended to be worn by individuals except hats, gloves, and footwear. (e) The term "fabric" means any material (other than a filament or yarn) woven, knitted, felted, or otherwise produced from or in combination with any natural or synthetic fiber, film, or substitute therefor when intended for use in the manufacture of wearing apparel except that interlining fabrics when used as such shall not be considered wearing apparel. (f) The term "commercial standard" means a trade standard for flammability established according to the procedures of the Commodity Standards Division of the United States Department of Commerce and promulgated by the Secretary of Commerce. (g) The term "Commission" means the Federal Trade Commission. (h) The term "Federal Trade Commission Act" means the Act of Congress entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes", approved September 26, 1914, as amended, and the Federal Trade Commission Act approved March 21, 1938. 1 PROHIBITED TRANSACTIONS SEC. 3. (a) The manufacture or sale in commerce, or the introduction, delivery for introduction, transportation or causing to be transported for the purpose of sale or delivery after sale in commerce, of any article of wearing apparel which is so highly flammable as to be dangerous when worn by individuals, shall be unlawful. (b) The sale in commerce, or the introduction, delivery for introduction, transportation or causing to be transported, for the purpose of sale or delivery after sale in commerce, of any fabric which is so highly flammable as to be dangerous when worn by individuals, shall be unlawful. STANDARD OF FLAMMABILITY SEC. 4. No article of wearing apparel or fabric shall be deemed so highly flammable under the provisions of this Act as to be dangerous when worn by individuals unless when tested under the conditions and in the manner prescribed therefor in the then applicable commercial standard promulgated by the Secretary of Commerce such article of wearing apparel or fabric exhibits rapid and intense burning as defined in that standard. ADMINISTRATION AND ENFORCEMENT SEC. 5. (a) Except as otherwise specifically provided herein, the provisions of this Act shall be administered and enforced by the Federal Trade Commission. (b) Whenever the Commission has reason to believe that any person is violating or is about to violate any provision of this Act, the Commission is authorized and directed to cause inspections, examinations, and tests to be made of articles of wearing apparel and fabrics subject to the provisions of this Act. (c) Whenever the Commission has reason to believe that any person is violating or is about to violate any provision of this Act, and that it would be in the public interest to enjoin such violation until complaint under the Federal Trade Commission Act is issued and dismissed by the Commission or until order to cease and desist made thereon by the Commission has become final within the meaning of the Federal Trade Commission Act or is set aside by the court on review, the Commission may bring suit in the district court of the United States or in United States court of any territory for the district or territory in which such person resides or transacts business, to enjoin such violation and upon proper showing a temporary injunction or restraining order shall be granted without bond. (d) Whenever the Commission has reason to believe that any article of wearing apparel has been manufactured or introduced into commerce or any fabric has been introduced in commerce in violation of the provisions of this Act, it may institute proceedings by process of libel for the seizure and confiscation of such article of wearing apparel or fabric in any district court of the United States within the jurisdiction of which such article of wearing apparel or fabric is found. Proceedings in cases instituted under the authority of this section shall conform as nearly as may be to proceedings in rem in admiralty, except that on demand of either party and in the discretion of the court, any issue of fact shall be tried by jury. Whenever such proceedings involving identical articles of wearing apparel or fabrics are pending in two or more jurisdictions, they may be consolidated for trial by order of any such court upon application seasonably made by any party in interest upon notice to all other parties in interest. Any court granting an order of consolidation shall cause prompt notification thereof to be given to other courts having jurisdiction in the cases covered thereby and the clerks of such other courts shall transmit all pertinent records and papers to the court designated for the trial of such consolidated proceedings. (e) In any such action the court upon application seasonably made before trial shall by order allow any party in interest, his attorney or agent, to obtain a representative sample of the article of wearing apparel or fabric seized. (f) If such articles of wearing apparel or fabrics are condemned by the court they shall be disposed of by destruction, by delivery to the owner or claimant thereof upon payment of legal costs and charges and upon execution of good and sufficient bond to the effect that such articles of wearing apparel or fabrics will not be disposed of for wearing apparel purposes until properly and adequately treated or processed so as to render them lawful for introduction into commerce, or by sale upon execution of good and sufficient bond to the effect that such articles of wearing apparel or fabrics will not be disposed of for wearing apparel purposes until properly and adequately treated or processed so as to render them lawful for introduction into commerce. If such products are disposed of by sale the proceeds, less costs and charges, shall be paid into the Treasury of the United States. PENALTIES SEC. 6. (a) Any person who willfully violates any provision of this Act shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than $5,000 or be imprisoned not more than one year or both in the discretion of the court: Provided, That nothing herein shall limit other provisions of this Act. (b) The violation of any provision of this Act shall, in addition to any other penalty provided by law, constitute an unfair method of competition within the meaning of section 5 of the Federal Trade Commission Act. (c) Whenever the Commission has reason to believe that any person has violated any provision of this Act and that the public interest would not be adequately served by the prosecution of the civil remedies authorized for the enforcement thereof, it shall certify all pertinent facts to the Attorney General whose duty it will be to cause appropriate proceedings to be brought for the enforcement of this Act against such person. INTERPRETATION AND SEPARABILITY SEC. 7. The provisions of this Act shall be held to be in addition to, and not in substitution for or limitation of the provisions of any other law or Act of the United States. If any provision of this Act or the application thereof to any person or circumstances is held invalid the remainder of the Act and the application of such provisions to any other person or circumstance shall not be affected thereby. EFFECTIVE DATE SEC. 8. This Act shall take effect six months after the date of its passage. EXCLUSIONS SEC. 9. The provisions of this Act shall not apply (a) to any common carrier or contract carrier with respect to an article of wearing apparel or fabric shipped or delivered for shipment into commerce in the ordinary course of its business; or (b) to any person manufacturing, delivering for shipment, shipping, selling or offering for sale for export from the United States to any foreign country an article of wearing apparel or fabric made in accordance with the specifications of the purchaser; or (c) to any convertor, processor, or finisher in performing a contract or commission service for the account of a person subject to the provisions of this Act, provided that said convertor, processor, or finisher does not cause any article of wearing apparel or fabric to become subject to this Act contrary to the terms of the contract or commission service; or (d) to any person who ships or delivers for shipment any article of wearing apparel or fabric to another person for the purpose of finishing or processing to render such article or fabric not highly flammable according to the provisions of this Act. The CHAIRMAN. We have reports from the Federal Trade Commission, the Department of Commerce, and the General Accounting Office with respect to this bill, which I wish to make a part of the record at this point. (The reports referred to are as follows:) Hon. EDWIN C. JOHNSON, FEDERAL TRADE COMMISSION, Chairman, Committee on Interstate and Foreign Commerce, United States Senate, Washington, D. C. MY DEAR MR. CHAIRMAN: Pursuant to your request for comment on S. 2918, Eighty-second Congress, second session, a bill to prohibit the introduction or movement in interstate commerce of articles of wearing apparel and fabrics which are so highly flammable as to be dangerous when worn by individuals, and for other purposes, the following is respectfully submitted. S. 2918 is designed to meet the dangers surrounding the use of flammable textile products of types which have caused either bodily injury or death to numerous individuals. The objective of this legislation is unquestionably sound and a matter of great public interest inasmuch as the sale of wearing apparel and fabrics which are so highly flammable as to be dangerous when worn foists upon the unsuspecting public a hazard of the greatest severity, as past accidents and events have demonstrated. It is our belief that protection from such hazard to a great extent can be afforded by legislation having such objective. However, in the opinion of the Commission the provisions of this bill are not adequate to accomplish the objective sought. We believe that certain perfecting amendments are required in order to afford more complete protection to consumers and at the same time relieve unnecessary hardships to industry and provide a more effective plan for administration and enforcement of the legislation. We therefore make the following suggestions. 1. The bill deals only with highly flammable articles of wearing apparel and fabrics which are intended for use in the manufacture of wearing apparel with the express exception of hats, gloves, footwear, and interlining fabrics. In our opinion the scope of the legislation should be enlarged so as to cover highly flammable household products such as draperies, rugs, bedding, upholsteries, and children's toys. To accomplish this the term "household products" should be defined and should accompany the terms‘wearing apparel" and "fabric" throughout the entire bill. 2. Subsection (e) of section 2 defines the term "fabric" as "any material (other than a filament or yarn) woven, knitted, felted, or otherwise produced from or in combination with any natural or synthetic fiber, film, or substitute therefor, when intended for use in the manufacture of wearing apparel * * *" In our opinion the clause "when intended for use in the manufacture of wearing apparel" should be revised to read: "which is manufactured, intended, or sold, for use as wearing apparel." 3. The provisions of subsections (a) and (b) of section 3 lack clarity and should be revised in the interest of more effective specification of the jurisdictional scope of the bill. In addition it would seem better draftsmanship to combine the two sections. The section would then read: "SEC. 3. The manufacture or delivery for introduction into commerce, or the sale, offer for sale, transportation, or distribution in commerce, or the manufacture, sale or offering for sale after shipment in commerce, of any article of wearing apparel or of any fabric which is so highly flammable as to be dangerous when worn by individuals is unlawful and shall be an unfair method of competition and an unfair act or practice in commerce under the Federal Trade Commission Act." In connection with this section we feel that the bill should carry an exemption of common carriers, contract carriers, and freight forwarders as provided in the Fur Products Labeling Act and the Wool Products Labeling Act. 4. Subsection (f) of section 2 defines the term "commercial standard" as "a trade standard for flammability established according to the procedures of the Commodity Standards Division of the United States Department of Commerce and promulgated by the Secretary of Commerce." Section 4, entitled "Standard of Flammability" provides: "SEC. 4. No article of wearing apparel or fabric shall be deemed so highly flammable under the provisions of this Act as to be dangerous when worn by individuals unless when tested under the conditions and in the manner prescribed therefor in the then applicable commercial standard promulgated by the Secretary of Commerce such article of wearing apparel or fabric exhibits rapid and intense burning as defined in that standard." Since violation of the act is made a crime and criminal penalties are provided therefor, the indefiniteness and uncertainty of the meaning of the "then applicable commercial standard" and "rapid and intense burning as defined in that standard" will make the constitutionality of the legislation doubtful. The due process clause of the Constitution requires that a criminal statute be sufficiently definite and certain so as to inform those who are subject to it what conduct on their part will render them liable to its penalties. In our opinion Congress should set forth in the statute a definite and certain standard based upon scientific tests conducted by the National Bureau of Standards and possibly other scientists or scientific organizations who are qualified to determine impartially an adequate standard of flammability. In our opinion such a standard so determined should then be stated affirmatively in the statute. In this connection we believe section 4 is also objectionable because it is written in the negative and would be difficult to administer. 5. In dealing with the administration and enforcement of the legislation by the Federal Trade Commission, subsections (a) and (b) of section 5 are inade quate for the reason that they are not sufficiently definite in conferring authority upon the enforcing agency and making available for enforcement of this act the powers that are specified in the Federal Trade Commission Act. The second and perhaps more serious deficiency lies in the fact that the language of this section does not bring into the bill the important element of having legislation preventive in character under which, through inspection, the possibilities of dangerously flammable textiles getting on the market may be forestalled. We believe subsections (a) and (b) of section 5 should be combined and revised to read: "SEC. 5 (a). Except as otherwise specifically provided herein, the provisions of this Act shall be enforced by the Federal Trade Commission under rules, regulations and procedure provided for in the Federal Trade Commission Act; (b) the Commission is authorized and directed to prevent any person from violating the provisions of section 3 of this Act in the same manner, by the same means and with the same jurisdiction, powers and duties as though all applicable terms and provisions of the Federal Trade Commission Act were incorporated into and made a part of this Act; and any such person violating any provision of section 3 of this Act shall be subject to the penalties and entitled to the privileges and immunities provided in said Federal Trade Commission Act as though the applicable terms and provisions of the said Federal Trade Commission Act were incorporated into and made a part of this Act; (c) the Commission is authorized and directed to prescribe such rules and regulations as may be necessary and proper for purposes of administration and enforcement of this Act; (d) the Commission is authorized to (1) cause inspections, analyses, tests and examinations to be made of any article of wearing apparel or fabric which it has reason to believe falls within the prohibitions of this Act; and (2) to cooperate on matters related to the purposes of this Act with any department or agency of the Government; with any State, Territory or possession or with the District of Columbia; or with any department, agency or political subdivision thereof; or with any person." 6. With respect to injunction and condemnation procedures set forth in subsections (c) and (c) of section 5, it is recommended that this part of the legislation be placed in a separate division entitled "Injunction and Condemnation Proceedings." These subsections should be relettered (a) and (b) under a new section number. For the purpose of incorporating the changes heretofore recommended affecting the scope of the bill, and in the interest of having uniformity with similar provisions of the Wool Products Labeling Act and the Fur Products Labeling Act, we recommend that subsection (d) with respect to condemnation procedure be revised in the new subsection lettered (b) to read: "(b) (1). Any article of wearing apparel or fabric shall be liable to be proceeded against in the district court of the United States for the district in which found, and to be seized for confiscation by process of libel for condemnation, if the Commission has reasonable cause to believe such article of wearing apparel or fabric is being manufactured or held for shipment, or shipped, or held for sale or exchange after shipment, in commerce, in violation of the provisions of this Act. Proceedings in such libel cases shall conform as nearly as may be to suits in rem in admiralty, and may be brought by the Commission. In any such action the court upon application seasonably made before trial shall by order allow any party in interest, his attorney or agent, to obtain a representative sample of the article of wearing apparel or fabric seized. (2) If such articles of wearing apparel or fabrics are condemned by the court, they shall be disposed of, in the discretion of the court, by destruction, by sale, by delivery to the owner or claimant thereof upon payment of legal costs and charges and upon execution of good and sufficient bond to the effect that such articles of wearing apparel or fabrics will not be disposed of until treated in such manner that they will not be so highly flammable as to be dangerous when worn by individuals during the entire life of the product. If such articles of wearing apparel, or fabrics are disposed of by sale, the proceeds less legal costs and charges, shall be paid into the Treasury of the United States as n iscellaneous receipts.' 7. Subsection (b) of section 6 provides that "the violation of any provision of this Act shall, in addition to any other penalty provided by law, constitute an unfair method of competition within the meaning of section 5 of the Federal Trade Commission Act." This subsection is not complete since it does not include "unfair or deceptive acts or practices" which were made unlawful by the Wheeler-Lea amendment of section 5 of the Federal Trade Commission Act. However, if section 3 is revised as heretofore recommended, subsection (b) of section 6 will not be needed and should be omitted. 20149-52-2 |