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II. Specific objection is made to the following provisions, which, when incorporated into the suggested bill for food alone, if one is needed, should be materially modified, as follows:
1. Section 3 (a) (4): Substitute the word “has” for the words "may have. The salmon-canning industry believes that the determinations provided for in this section should be based upon fact rather than conjecture.
2. Section 11 and 7 (e), taken together, permit the Secretary to promulgate standards and provide that a food shall be misbranded if the label does not state such standards, including standards of quality, or if the product is not of the promulgated standard or standards.
The salmon-canning industry urges the amendment of these sections in regard to the preparation of canned salmon or canned foods, by the substitution of the provision suggested by the National Canners Association embodying the principle of the McNary-Mapes amendment to the Food and Drug Act. This amendment will allow the Secretary of Agriculture to set standard for each class of canned food calculated to promote honesty and fair dealing with the consumer. That is the industry's conception of proper and practicable governmental regulation, namely, to enforce a minimum standard of quality below which a manufactured product may not fall. Anything further is regimentation that extends beyond principles of our existing system of government.
The industry opposes the principle that government officials should dictate the forms and types in which a product is to be marketed. Those forms and types must be flexible. They result from a variety of factors unsusceptible of fixed standardization. They adjust themselves naturally by consumer preference in a competitive field. By unwritten economic laws they bear a close relation to costs.
Furthermore, the industry feels strongly that any such standards cannot be set up so as to be capable of efficient enforcement and that any efforts at enforcement necessitate procedural difficulties that make the scheme impractical.
For example, in the salmon-canning industry there are five varieties of salmon which may be canned-Chinook, Red, Coho, Pink, and Chum. The promulgation of standards within these five varieties is impractical and impossible. Conceivably, there is no objection to a requirement that the particular variety of salmon be designated.
3. Section 12 as drafted would permit the Secretary under conditions determinable within his own discretion to license all food factories by means of a permit system which may be suspended arbitrarily by him. The nature of the operations involved in packing salmon in Alaska render such a provision for administrative power particularly objectionable to the salmon-packing industry. Due to the short season and the isolated character of the area in which operations take place the revocation of a permit under section 12 (b) on the ground that certain regulations were being violated in the packing operations then under way would be equivalent to an administrative determination that for a particular season no packing could be allowed. Any right of appeal for judicial determination would be an insufficient remedy, since it would serve only to lock the stable after the horse was gone. The provision that the permit may be reinstated after hearing, inspection, and a finding that adequate measures of correction have been taken, is an illusory safeguard for the same reason.
The industry feels that the legislation of these drastic powers into an administrative official is a threat to its very existence because the peculiar conditions surrounding the industry nullify the effectiveness of its constitutional rights of judicial appeal.
Section 16 (e) provides further that foods manufactured by a person not holding a permit under section 12 shall be destroyed. The industry feels that this provision is unnecessarily drastic. The words require the administrative officials to destroy the whole shipment without permit. This requirement provokes an uneconomic and unnecessary waste and a taking of property without due process of law. Furthermore, some provision should be made for the return to the manufacturer of goods processed during the period in which the permit was canceled in event the permit is reinstated and the goods are given a clear bill.
The association also indorses the proposal made by the National Canners' Association for the amendment of section 17 (b) regarding penalties and confirms the reasons advanced by that organization as being highly important in the salmon-packing industry. The association recommends the amendment of section 18 to provide for the proof of knowledge on the part of the person charged sufficient to amount to a criminal intent. It is somewhat difficult to impose criminal liability upon a corporate official located in the United States for some minor act done by a subordinate in Alaska where he has no knowledge of such act and had he such knowledge would clearly have forbidden it.
The association concurs in the necessity for and desirability of the amendment to section 21 regarding publicity suggested by the National Canners' Association. The elimination of the phrase "for the protection of the consumer against fraud" will remove the authority to issue precautionary information in advance of findings of fact. This seems only fair to the food industry, since the provision is obviously aimed drugs and cosmetics. A separate provision relating to them might be inserted. This association recommends the complete deletion of section 24 as conferring upon the consumers no greater rights than they now have. It is the type of provision which will be conducive to unwarranted and fictitious suits instituted solely for the purpose of compelling the defendant to settle.
The American food manufacturers, including the salmon packers, are as much interested as the Government in preventing the sale of adulterated, poisonous, or unhealthful foods. It should be recalled that they are as much concerned about consumer interests and health as are any other agencies. Nevertheless, it must likewise be remembered that the food industry represents investments of many millions of dollars, that in the salmon-packing industry, because of conditions depending entirely upon nature or upon conservation activities of the Federal Government, in many seasons this investment yields no return whatever. To permit complete administrative control of this industry, to permit arbitrary or mistaken seizures of thousands of dollars worth of food, to permit, as this bill contemplates, the complete cessation of activities, is a matter of great moment to those in the industry.
We believe that in any act proposed, adequate provision for complete court review should be provided. This is intended as no reflection upon any administrative official. But a law as sweeping as this can be arbitrarily enforced. We feel that the interest of the public will not be in any way affected, and the necessities of the situation require that adequate court safeguards be thrown around administrative action under the bill. In most instances resort to the courts is not necessary In the majority of cases the industry will cooperate in the formulation of any regulations or in any action under them, but the association insists that the amendment proposed by the National Canners providing adequate court review of action under this act be incorporated in it.
In conclusion, we wish to say again that it is not only unjust, but possibly improper legislative action to associate in one comprehensive statute a variety of products—drugs, cosmetics, and foods—which involve wholly different techniques of manufacture and sale and the problems in each of which are wholly different. We have no opinion as to the necessity of some of the provisions of the act as applied to other fields, but we believe it is clear from the history of the cooperation between the food industry and the Government that most, if not all, of them are completely unnecessary in the case of canned foods, particularly canned salmon.
SAN FRANCISCO CHAMBER OF COMMERCE,
Washington, D. C., December 5, 1993. Hon. HUBERT D. STEPHENS,
Chairman Commerce Committee, Washington, D.C. MY DEAR MR. STEPHENS: I beg to hand you, herewith, brief from the San Francisco Cocoa Trade Committee, on the subject of mold tolerance on cocoa which will be considered at a meeting of your committee December 7, when the Tugwell pure food and drug bill is to be taken up.
San Francisco's importations of cocoa beans have dropped 50 percent since October 1, when the 5 percent mold tolerance went into effect, while there has been no decline at New York. The new 5 percent tolerance stands out in bold relief when compared with the international standard, fixed by long experience of 12 percent.
If present conditions continue it seems inevitable that San Francisco's cocoa bean import trade will be slowly strangled. I trust you will give this matter your usual careful consideration. Sincerely yours,
C. B. DODDS, Washington Representative.
MOLD TOLERANCE ON Cocoa The international standard for mold tolerance of 12 percent, fixed by long experience, meets average crop conditions and does not diminish the quality of any finished cocoa product. No necessity has been shown to arbitrarily reduce this standard to 5 percent, practically amounting to an embargo on all Pacific coast importations of consumption cocoa beans. The average yearly mold percentage of Accra cocoa beans, representing more than 60 percent of the world's crop, is 4.1 percent as stated in “Foodstuff's Round the World”, United States Department of Commerce, dated August 19, 1932. The Brazilian statistics are about the same. Cocoa beans are semifermented and therefore subject to deterioration in transit and the longer water borne trip to Pacific coast ports puts us at a definite disadvantage with the East Coast, as proven by actual experiences. The Food and Drug Administration does not admit such deterioration, although it has made no tests whatever on Pacific coast imports. Its theory is pure assumption.
According to the Department of Agriculture's ruling of August 26, 1931, all cocoa bean shipments arriving after October 1, 1931, could not be segregated any more, when a partial excess mold count was found, except if destruction of the nonpassable portion was agreed to. This abrogates the provisions of the tariff act, granting importers the right to either reexport or destroy. Acting Secretary of Agriculture, R. W. Dunlop, justifies this action in a letter dated October 16, 1931, as follows:
"Under the provisions of the Federal Food and Drugs Act, section 11, the broadest discretion is conferred upon this Department in the control of importations of food and drugs. It may make a conclusive finding of fact as to the admissibility of such articles into the country. It follows, therefore, that having absolute authority to determine whether, under the law, articles of food or drugs should be prohibited entry, it may make a qualified finding which will permit the entry, conditionally, of partly adulterated or improperly branded consignments, which can be made to conform to law. The Department in such instances possesses authority to prescribe the condition upon which such consignments may be entered, and may impose such restrictions upon the importers thereof as it may deem necessary or apparent, therefore, that the Department may, within the limits of its lawful authority, make its findings and recommendations as to the admissibility of consignments such as those in question, dependent upon the destruction of the unfit portions thereof."
Large East coast importers can make arrangements with steamship lines, to ship rejected cocoa beans, at a nominal cost, to Toronto or Liverpool or continental ports where such shipments can be sold a few days later at full value if below 12 percent mold. Pacific coast importers are at such a disadvantage that business is practically impossible without covering the risk by adding to the cost, thus making us noncompetitive. It is doubtful if Congress ever intended to give such powers to the Food and Drug Administration.
The effect of the nonsegregation ruling is shown in the precipitious decline of imports and its resultant damage to the industry. Any actual comparison between the amount of rejections on the East coast and on the West coast is purely academic and simply means that western importers understood the consequences of this ruling. Mr. P. B. Dunbar, Assistant Chief of the Food and Drug Administration, in a letter dated June 20, 1933, arrived at a fallacious conclusion when he stated:
“The administration had occasion to make a study of its activities on cocoa bean entries from June 1932 until recent times. This study revealed that during the period there were refused entry at the port of San Francisco a total of 364 bags as against detention of 74,000 bags which were offered for entry at the port of New York.
“Comparison of these figures does not make it apparent that the industry on the west coast suffered more severely than that on the east coast.”
The abrogation of segregation and the right of re-export is an intolerable academic interference in the delicate_machinery of foreign trade. It is an usurpation of power on the part of the Food and Drug Administration, questionable as to its legality and destructive as to its consequences.
SAN FRANCISCO Cocoa TRADE COMMITTEE,
HOUSE OF REPRESENTATIVES,
Washington, D.C., December 23, 1933. Hon. ROYAL S. COPELAND, Chairman Senate Committee on Commerce,
United States Senate, Washington, D.C. MY DEAR SENATOR: In connection with Senate bill 1944, proposing amendments to the Food and Drugs Act, I beg to hand you herewith, at their request, statement of the California Fruit Exchange of Sacramento, Calif., with the request that it be inserted in the printed hearings.
This organization is a growers cooperative marketing organization with a membership of several thousand and its management is of an exceptionally high character.
Will you kindly advise me whether additional copies of this statement are desired for the use of the committee. If so, I shall be glad to have the Exchange furnish them. Sincerely yours,
FRANK H. BUCK.
STATEMENT OF CALIFORNIA FRUIT EXCHANGE, SACRAMENTO, CALIF., RE 8. 1944
PROPOSED NEW FOOD AND DRUGS ACT
(The California Fruit Exchange, with headquarters in Sacramento, Calif., is a nonprofit, growers' cooperative marketing organization. It handles in a normal year approximately 15,000 carloads of fresh deciduous tree fruits and grapes. Its membership totals about 5,000 growers.)
In presenting this statement, the California Fruit Exchange wishes to go on record at the very outset to the effect that it endorses, without reservations, the principles involved in pure-food legislation. The rights of the great body of American consumers are paramount in food merchandising. They are entitled to every protection from a health standpoint, and no organization which fails to recognize this simple fact can be successful for any long period of time.
The proposed bill, however, goes far beyond these basic principles. As a whole, it is dangerous in character. Without analysis it has a very deceptive popular appeal, but basically the bill is predicated upon a complete shift from commonly accepted legal concepts to bureaucracy. The act is a criminal statute, conferring directly upon the Secretary of Agriculture authority to make rules, regulations, standards and tolerances which will have the full force and effect of law, and from which there is no appeal except to the courts. No method is provided for the right of appeal within the department; no separation is made between willful violations and technical violations in the matter of fines; and in our judgment it goes far beyond anything required to protect the public health.
Originally, and up to this time, the Food and Drug Administration has been a regulatory, police body. Its primary duty has been to protect public health through the existing Food and Drugs Act. This bill, however, gives the Secretary and the Food and Drug Administration, who will enforce the act, the right to impose mandatory grading standards on food industries, including perishable fruits and vegetables. Such grading standards as have been recommended by the Department of Agriculture to date have emanated from the Bureau of Agricultural Economics, an organization which is both service and regulatory in character, but which has been composed in large measure of men who have had actual practical experience in the handling and marketing of agricultural commodities. These men have not been essentially police officers, and they have the right attitude toward the practical phases of the agricultural industry. The various grading standards recommended by this Bureau to date also have been for the most part, permissive in character. In some cases they have been mandatory, but only with the consent of the industry involved.
We feel, therefore, that foods should be separated from the proposed measure; that the present Food and Drugs Act should be revised as a pure food bill; and that with the support of the many court decisions which have been obtained over a long period of years since the present measure has been in force and effect, it should be strengthened in some details rather than attempting to include foods with drugs and cosmetics in new legislation.
Obviously, no one can defend the indiscriminate, reckless sale of dangerous patent medicines which are incorrectly or incompletely labeled and falsely advertised. The food industry as such, however, is certainly not in the class with these fake remedies. On the whole, it is an industry in which the best of practices prevail, and in any event is large enough to stand independently and on its own feet.
Should it prove impossible at this time to divorce foods from drugs and cosmetics, and give us a separate act, attention is directed to the following in S. 1944: Section 2, paragraph (e), line 20, on page 2 of the printed bill defines
the term "interstate commerce" as meaning "commerce between any State or Territory and any place outside thereof, or between points within the same State or Territory, but through any place outside thereof." This immediately extends the jurisdiction of the Secretary of Agriculture to export shipments; a new idea in defining interstate commerce. Why the Secretary of Agriculture should assume jurisdiction over shipments of any food commodity to foreign countries is impossible to determine. Surely our departments of the Federal Government have enough to do to protect our own people and the citizens of this Nation without attempting to foist on foreign countries their opinions and ideas. The peoples of central Europe for example, may, because of food habits or financial reasons, choose to buy certain substandard goods. If they care to do so, that is their business. The restrictions and laws of foreign countries are varied and wide enough at present to protect their own nationals. There is no need for the United States entering this field.
Section 3, the word "shall” in line 22 should be eliminated and the word "may" substituted in lieu thereof, so that the first sentence reads, “A food may be deemed to be adulterated" instead of “shall be deemed to be adulterated.” The ambiguous language in paragraph (a) of section 3, “if it is or may be dangerous to public health” should read “if it is dangerous to public health.”
The milk people are somewhat afraid of lines 12, 13 and 14 on page 4 in section 3, reading among other things "if any valuable constituent has been in whole or in part extracted therefrom.” What about skim milk? Certainly valuable constituents have been removed from the subsequent product, but the final product is in no way dangerous to public health. The department may explain that they would not proceed against such products, but the language gives them authority to do so.
In section 6, "Misbranding”, paragraph (a) is replete with inferences and presumptions. It states “if its labeling is in any particular false, or by ambiguity, or inference creates a misleading impression regarding any food The words " or by ambiguity or inference creates a misleading impression” should be eliminated. To vest in the Secretary or the Food and Drug Administration the right to interpret what is ambiguous or inferential or what creates misleading impressions, is certainly dangerous; the language is anything but specific; and any Federal criminal statute should be specific if it is going to be fair.
În paragraph (b) of section 6, subparagraph (2), it is required that an accurate statement of the quantity of the contents and terms of_weight or numerical count may be prescribed by regulations of the Secretary. Reasonable variations are permitted as to small packages of foods. Certainly reasonable variations should likewise be permitted for packages containing fruits and vegetables which as you know from experience, vary in weight, and tolerances or variations must be permitted to accommodate this necessary situation.
Paragraph (c) of section 6 requires the placing of the label in a prominent and easily seen position, readily intelligible to purchasers. What about bulk retail sales of fruits and vegetables? If this authority is extended to such sales, enforcement would be difficult, if not impossible. Bulk sales should be exempted from this requirement.
Section 7,“ Misbranding of Foods”, is an omnibus section. Fruits and vegetables should really be exempted entirely. The word "shall” in the first sentence should be stricken out and the word “may” substituted in lieu thereof. Paragraph (a) authorizes the Secretary to prescribe the standard of fill in packages, which introduces at once the matter of quality, grades, and standards, thus going far beyond the necessities of a public health measure. There is no similar provision in the present statute. If language is used such as “if its container is so made, formed, or filled as to mislead the purchaser' permission should be given to use caps, cushions, pads, packing material of all kinds normally utilized in shipping fresh fruits and
vegetables. Subsection (f) of section 7 on page 9 requires on the label the common or usual name of each ingredient in the package, in order of predominance by weight. Food industries, other than the fresh-fruit industry on the Pacific coast, object strenuously to this provision. In many cases it is impossible to comply with such a requirement. It carried to its conclusion, it would necessitate revealing secret and patented formulae to competitors. The contention that the patent laws fully protect the food manufacturer in this regard is untenable, because