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Mr. MARSHALL. I believe the principle of fair labeling of fabrics is identical with that of labeling food and drugs. Unless provision can be made for doing both, it would only be consistent to repeal the food and drugs act.
The CHAIRMAN. Do you want to be heard, Mr. Murphy, for a few minutes ?
STATEMENT OF HON. FRANK MURPHY, REPRESENTATIVE IN CONGRESS FROM THE EIGHTEENTH OHIO DISTRICT.
Mr. MURPHY. Mr. Chairman and gentlemen: I just want to add a word. Representing, as I do, a district made up largely of farmers who are engaged in wool growing, and having received many letters from my constituents, as well as resolutions passed by granges indorsing the so-called truth in fabric bill, I want to urge as strongly as I can that you make a favorable report of the bill now under consideration. I appreciate that Mr. French has presented the case of the farmer in a most comprehensive manner, and I hope that this committee will report out à bill that will be satisfactory to my farmer constituents as well as all others who are interested in knowing just what per cent of wool clothing contains when offered for sale.
The CHAIRMAN. The committee will adjourn to meet to-morrow at 10 o'clock.
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,
HOUSE OF REPRESENTATIVES,
Washington, D. C., Saturday, March 20, 1920. The committee met at 10 o'clock a. m., Hon. John J. Esch (chairman) presiding.
The CHAIRMAN. The committee will come to order. When we adjourned last evening Mr. Bonynge was to appear in support of the French bill, H. N. 11641. We will be glad to hear you, Mr. Bonynge.
STATEMENT OF MR. ROBERT W. BONYNGE,
Mr. BONYNGE. Mr. Chairman and gentlemen of the committee, for the purposes of the record I may state that my name is Robert W. Bonynge, and that I appear on this occasion as counsel for the American Sheep and Wool Bureau of America, which is an organization made up of representatives of the sheep and wool industries and allied industries of the United States. Its purpose is similar to that of other trade organizations for the legitimate development of the industries which they represent, and for the promotion of the welfare of the members of the organization; and we trust, also, for the public interest.
The association that I represent, in common with a large number of other associations, has indorsed the principles and underlying features of the French bill. This committee has undoubtedly received a number of letters and resolutions from woolgrowers and woolgrowers' associations as well as from other allied industries and organizations thereof indorsing the legislation along the fundamental principles and features of the French bill.
The very exhaustive and illuminating discussion, in speaking on that bill, made by my friend and former colleague, Mr. French, of Idaho, yesterday, will, I think, make it unnecessary for me to discuss at length some of the points which I had expected to present to this committee.
It will be my aim, gentlemen, so far as it is possible, to avoid mere repetition. I have no desire to trespass upon the valnable time of this committee. But it may be necessary for me, as laying the foundation for some of the points I desire to present to the committee, to refer briefly to some of the arguments that have already been presented to the committee, and in doing so I crave the indulgence of the committee.
I think it may be assumed now that the committee is satisfied, both from the resolutions that have been presented by various organizations throughout the country, and by the comment that has been found in the public press, as well as by the number of bills that have been introduced in this Congress, that there is a real public demand for legislation upon this subject, and that demand is founded upon a real public need.' That demand has found expression in this Congress by the introduction of four or five different bills, and they are of two separate and distinct classes. We have the bills introduced by Mr. Rogers and by Mr. Barkley, which may de denominated the misbranding bills, founded largely upon the British marks merchandising act. Those bills do not provide for compulsory branding, in any instance. They are simply, as the bills speak for themselves, misbranding bills, leaving to the manufacturer the option whether he will brand his goods or not, but simply providing that if he does brand them he must not misbrand them within the meaning of misbranding as defined by those acts.
The only difference that I can find between the Barkley bill and the Rogers bill is that the Rogers bill is perhaps a little broader than the Barkley bill. The Barkley bill limits its provisions simply to misbranding, whereas the Rogers bill goes further and prohibits not only misbranding, but misrepresentation or false trade description, and defines misbranding and false trade description. I think it has been very clearly proven to this committee that the misbranding bills will not meet the conditions as they exist in the trade of fabric manufacturing. The evil that is sought to be corrected by the truth in fabric bill, and it is one that vitally affects the public interest, is that the term “all wool” is an alias for virgin wool, by which the people are forced to accept wool shoddy as a substitute for virgin wool and to pay the price of virgin wool for the substitute. That evil can in no measure be corrected by either of the misbranding bills. I am not here in opposition to those bills, for they may be necessary, but they do not meet the conditions that exist in the manufacture of woven fabric.
Fabric that is sold as an all-wool fabric is understood by the public generally to be virgin wool, wool that has not been used theretofore. That is the general acceptation of that term by the public generally. While those engaged in the trade may know the distinction between all wool and virgin wool, the great mass of the people draw no such distinction, and the misbranding bills would in no way draw to their attention that distinction. In order to determine whether a fabric sold as an all-wool fabric would be a misbranded article, we have to turn to the provisions of the Rogers bill to ascertain what is meant by misbranding.
Section 5 of the Rogers bill defines what shall constitute misbranding. The only provision or subdivision of that section that could by any stretch of the imagination be applicable to the situation as we find it in the manufacture of woven fabric is subdivision 5, which reads as follows:
Sec. 5. That for the purposes of this act an article shall be deemed to be misbranded or misrepresentedFirst. If it be an imitation of and offered for sale under the name of another article.
Of course, a fabric branded as all wool, even though it contained only shoddy, second-hand or third-hand wool, would not come within that definition. It would not be offered as an imitation of another article. It would be what it purported to be, all wool, and therefore would not be misbranded within the meaning of this act. That subdivision then proceeds: or with
name or brand so nearly like it as to deceive purchasers as to its origin or character.
Mr. DEWALT. Suppose it was branded "all virgin wool."
Mr. BONYNGE. If it was branded all virgin wool" and contained shoddy, then of course it would be misbranded; but it would not be branded “all virgin wool.” It would be branded "all wool,” in all probability, and then sold as it is now sold, in the place of virgin wool and at the price of virgin wool.
Neither would it be a false description as defined by the act.
Section 6 designates what shall be a trade description. It reads as follows:
Sec. 6. That for the purposes of this act the expression “trade description" means any description, statement, or other indication, direct, or indirect
(a) As to the number, quantity, quality, grade, measure, gauge, or weight of any goods; or
(d) As to the material of which any goods are composed.
These are the only two subdivisions of the section defining trade description that could have any applicability to the subject under discussion.
What I have said in regard to misbranding applies with equal force to false trade description as defined by the bill. The garment or fabric branded as “all wool” would not be in violation of either the definition of misbranding or of the description as given by the Rogers bill if the garment or fabric were composed of all wool shoddy. Consequently, gentlemen, instead of correcting the evil that is sought to be corrected by the truth-in-fabric bill, the fact is that you would perpetuate and you would legalize just the very deception that is now practiced upon the public by selling a garment as all wool that is composed, in fact, of shoddy or second or third class wool. Therefore I say that the passage of the Rogers bill or any other similar bill, unless it is accompanied by some bill that deals specifically with the articles of woven fabric or articles of apparel made therefrom, instead of correcting the evil that is sought to be corrected, would simply legalize and intensity the deception that is now practiced upon the public.
The other two bills that are before this committee are the French bill and the Rainey bill, both of which are confined specifically to the manufacture of woven fabric, and of articles made therefrom, and
differ only in the respect that the French bill provides a machinery for the enforcement of the act, whereas the Rainey bill simply leaves it to the Department of Justice to prosecute those who violate its provisions, without providing any special machinery for the enforcement of the act. Later I shall discuss the Rainey bill in more detail.
At the very outset of the consideration of these different bills, several querries will suggest themselves to the members of this committee, and indeed they are indicated by some of the questions propounded by members of this committee, whether or not, first, it is not possible to pass one general bill dealing with all commodities that are sold; and, second, whether or not the doctrine of the old common law, caveat emptor, is not sufficient to protect the public without any special legislation at all on this subject.
I will take up first for consideration the second point I have mentioned. Those of us who are lawyers well understand the doctrine that is expressed in the Latin phrase caveat emptor; “let the purchaser beware.” We know it is a rule of the common law, still operative and in force except as modified by statute, that in the purchase of personal property the purchaser makes his purchase at his own peril and his own risk, unless he demands and receives some guarantee either as to the quality or the quantity of the goods. By reason of the fact that through the development of modern chemistry it has become impossible in many instances for the purchaser, by the inspection of an article of personal property he is purchasing, to determine whether or not it is what it is represented to be, the legislatures of many States of the Union, as well as the Congress of the United States, have found it necessary in special instances to enact legislation dealing with different subjects. The theory of the old common law was that a purchaser could examine the article that was offered for sale and determine for himself, by such inspection, whether it was what it purported to be, and after he had made the inspection he made his purchase at his own risk. But it has been found, as I have said, that in certain cases it is impossible for the purchaser, by an ordinary inspection, to determine whether or not he is getting what he paid for, and so in the public interest Congress has passed the pure food law, the drug law, the insecticide act, and the oleomargarine law, and the legislatures of the States have enacted other legislation dealing with specific commodities which, by their nature, are such that the public can not protect itself against the imposition of imitations or fraudulent articles. I understand that in New Zealand an act has recently been passed, dealing with the subject of leather; and so it may be that in the course of time not only may it be found necessary to deal with woven fabrics, but there may be other industries which will require separate and distinct treatment by Congress.
I believe Mr. Jones inquired yesterday “liow far shall we go in that respect? How many acts of this kind will Congress and the legislatures of the various States be called upon to enact?" I can not answer that question, gentlemen. Neither do I think that the members of this committee can frame an answer to it. That will altogether depend upon the development of the different industries, and it will depend upon the demands of the public whether or not in any particular industry the people are being deceived to their detriment, requiring special legislation either by Congress or by the legislatures of the various States to protect the people in cases where
they are unable to protect themselves. And when that demand arises I have no doubt that it will find responsive action in the legislatures of the States and in Congress. I know that when the demand becomes sufficiently insistent Congress, as always heretofore, has been found thoroughly responsive and willing to accord to the people the protection which they require. And so it is impossible for you gentlemen sitting here to-day to say, "Thus far 'shall we go, and no further.” You will have to determine as conditions grow and develop how far you shall go, and you can not lay down at the present time any fast rule by which you will be governed. To-day you are presented alone with the question whether the manufacture of woven fabrics and of garments made therefrom presents a condition that requires individual treatment and that can not be covered by general legislation. I submit that the argument made by Mr. French has demonstrated conclusively that the conditions in that trade are so different from those that prevail in the ordinary sale of commodities that it does require special treatment by special legislation designed by adequate provisions to guard the people. The reason for that is that there is no way by which the public can determine by an inspection of the garment that is offered for sale, or the fabric, whether or not it is what it purports to be; whether the people get what they pay for or have the right, as Mr. Rogers expressed it yesterday, to get whatever they desire and to be assured that in the purchase they do get what they have attempted to purchase. Consequently, I take it, gentlemen, that it has been demonstrated that in the matter of woven fabrics and articles or garments made therefrom the conditions are such that they require special treatment at the hands of Congress.
And that brings me, then, to the two bills that have been presented that deal specifically with this subject. The branding bills, let me say before I conclude on that subject, cover all commodities; they are not confined to woven fabrics, and there is no objection to their passage, provided they are acompanied by a bill that deals specifically with the conditions as they exist in the manufacture of woven fabrics.
My friend, Mr. Rainey, has introduced a bill which is identical in principle with the bill that I am advocating. He has simply contented himself with providing that there must be a compulsory branding of articles or fabrics made from wool, and of articles or garments made therefrom, and prescribing penalties for violation of the act. There his bill stops. It does not define the terms that are used in the bill. It does not say what shall constitute wool virgin wool, shoddy, reworked wool, or the other terms used in the bill.
Let me call your attention to one fact in connection with that bill that I think clearly shows the necessity for some additional machinery to secure the enforcement of the act. There is no provision in the Rainey bill that will prevent the flooding of this market by imported goods, whether branded or not, or whether correctly branded within the meaning of the Rainey bill. Under that bill it would be possible for a foreign manufacturer to introduce into this market a woven fabric, either without any brand upon it or with a false brand upon it, and the criminal laws of this country could not reach the importer. The only way offectively by which you can guard against that condition is by providing some machin