big club against industry and business. In many of these fields where there is deceptive packaging, the competition is pretty rough. The competition is keen. Many of these products are exactly the same. Claims are made, but when all is said and done, they do basically the same job.

But, in order to get the consumer to buy a certain package, you have all these gimmicks. You have many, many packages that are deceptive. You have many packages that have false bottoms or a lot of air or false sides. Claims are made. What would appear to be a bargain because of the size, as a matter of fact, is the most uneconomic way for the housewife to buy. A woman would have to be a mathematician to figure out the fractional ounces that are put on many, many packages. I think this bill would be welcomed by legitimate industry in America, and I think that the advertisement from one of America's largest industries that I have submitted to the committee, the two-page ad, indicates how one industry feels about it.

Look at the experience of the canning industry which certainly has not been hurt by its self-regulation. The canning industry keeps multiplying and becoming larger and more successful, and, I think, if you went to any canner in America today, he would be very pleased at their uniform sizes of cans, so, when a housewife goes in and she buys a certain size can, she knows what she is getting.

I do not think that this is going to be harmful to industry. It is going to be helpful to industry, and it will also be most helpful to the housewives of America, who will know what they are getting when they go into the stores of our Nation.

Senator HART. Your observation was directed at the authority which would be in some cases available here for seizure. I am inclined to agree with you that it may not be necessary. I go beyond that and raise serious question as to whether it is necessary that we have any criminal sanction in the bill. We have it only as it would follow in those limited areas of the Food and Drug Act, but even here I doubt very much if there is need for that.

Senator RIBICOFF. I think industry would cooperate. You would find the grocers would cooperate, and I think a cease-and-desist order would really do the job, if there is no health or safety involved.

Senator HART. I do want, early in the record, to make the comment, lest in the development of it we forget-you have suggested that the requirement in this bill that the statement of net contents be on the front panel of the package might not be appropriate in the case of a small bottle of perfume.

I am sure there are a number of products where the net weight on the front would be difficult, such as on a small tube of lipstick, but it was for that reason that there was provided in the bill in section 3(a) (5) authorization to make exceptions. Such exceptions would be guided by the nature and form and quantity of the particular commodity.

I really think that this is the preferable way to provide for the exception, rather than to dream up an enormous list of exceptions and then discover that your dream was not complete. But we do recognize the concern that you have expressed here.

Again, I thank you very much for what is a most helpful reaction to this proposal.

Senator Hruska, I am sure, may have a comment or questions. Senator HRUSKA. I want to join the chairman in commending you for your statement and your interest in this subject. Also in your proficiency in it, which you demonstrated in a capacity different than the one in which you are now serving. There were several times when you appeared before our committee as Secretary of Health, Education, and Welfare, and we always welcomed you very much for your help. Senator Ribicoff, in your earlier experiences you were the Administrator, really, of the Federal Food, Drug and Cosmetic Act, were you not?

Senator RIBICOFF. That is right.

Senator HRUSKA. There is included in the act, which is title 21 of the United States Code, section 403 which has to do with misbranded food. I believe you have a copy of that available.

Now, a reading of that would indicate that there is a fully extensive and detailed statutory provision governing labeling and misbranding. In fact, it starts out by saying:

A food shall be deemed to be misbranded if its labeling is false or misleading in any particular, if it is offered for sale under the name of another food, if it is an imitation of another food, unless its label bears in type of uniform size and prominence the word "imitation" and immediately thereafter the name of the food imitated, if its container is so made, formed or filled as to be misleading— and so on.

Is there anything in the bill before us that is not included in the phraseology and in the language of section 403?

Senator RIBICOFF. Senator Hruska, the best example is the one of the three baking powder cans. Now, there is nothing misleading or false on those cans. Those cans do contain the actual weight in those cans. They are placed on the panel of the cans, and, therefore, those cans would not violate the law. Yet when you take a situation where three cans exactly identical, containing the same amount of merchandise, are on the store's shelf, you could not go in and yet any court to enforce an order against this.

There is a case that came up in the New Jersey Federal courts that the Food and Drug Administration tried to enforce, the Delson case, and the court threw it out. There you had a situation where two packages of candy were being sold side by side. The buy that was the uneconomic buy was in a package that had false sides; it was a much larger package than the smaller package; yet, the court said that the act was of such an indefinite nature, the present Food and Drug Act, that there was nothing that the court could go on.

Now, I think what we are trying to do is what Congress has done time and time again. The list of citations that I have given you, the different legislation that is now part of the law, when you pass regulations under these laws, that it is not a question of interpretation. You give them the force of law and you then make it possible for these agencies to go ahead and enforce the law.

At the present time it is a case-by-case proposition. It is very timewasting. It is costly, and you never know what the results are. In Food and Drug you would have to have a mass of inspectors to do the job. It would seem to me, if you want to eliminate bureaucracy, if you want to let industry do its self-policing and you want to save in the Federal budget the salaries of thousands of inspectors snooping

around in every store of the United States, I think Senator Hart's bill would do it much better than putting a few thousand more inspectors on the Federal payroll.

Senator HRUSKA. Of course, I do not want to do any of those things, Senator.

Senator RIBICOFF. I know you do not.

Senator HRUSKA. And I do not think there is anyone on this committee that I know of that has advocated that, nor will they try to amend the bill so as to get that done. The point I seek is whether or not there is not now sufficient statutory authority to do all the things which are in the bill.

Now, with reference to those three baking powder cans, where in the present bill, in the proposed bill, would the authority of the law fall to apply to that situation?

Senator RIBICOFF. I would say in 3A. (c).

Senator HRUSKA. Which reads

Senator RIBICOFF. Require the net quantity of contents

Senator HRUSKA. As soon as practicable after the effective date of this section, regulations shall be promulgated to

(1) require the net quantity of contents (in terms of weight, measure, or count, or any combination thereof) of consumer commodities to be stated upon the front panel of packages containing such commodities, and upon any labels affixed to such commodities.

Is that the one you refer to?

Senator RIBICOFF. Yes.

Then under (2):

establish minimum standards with respect to the location and prominence of statements of the net quantity of contents.

In other words, so in one can it would not be on the top, and on another can it would be on the bottom; one can it would be vertical and the other can, horizontal, as in the confusion of the three examples.

You can establish on baking powder that the weights on the can would be in the upper right-hand corner, the lower right-hand corner, in the center. It would be either horizontal or vertical, so the housewife at least, going to the supermarket, if she wanted to buy some baking powder, she could always look in the same place and see what the net weight would be, instead of being confused like she would be here, sir.

Senator HRUSKA. In that regard, let me read section 403, subsection (f), of the present statute, title 21:

If any word, statement or other information required by, or under, authority of this act which shall appear on the label or labeling is not prominently placed thereon with such conspicuousness as compared with other words, statements, designs or devices in the labeling, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use

then it is misleading and it is misbranded.

Now, what does the proposed bill add to that very clear and definite statutory statement?

Senator RIBICOFF. That is not clear at all, because the manufacturer under this particular section that you have just read, under the present law, could bring in any one of those individual three cans and each one of those cans would comply with section 403.

The problem that comes in here is when the manufacturer takes the same size can of the same product with the same price, puts different ounces on them, and then places them in different sections of the panel. Now, this is where the misleading part comes in, in this particular case.

Senator HRUSKA. But insofar as the weight is concerned, you made a great point of the weight being placed horizontally or vertically and semicircularly and so on, would that not be taken care of by section 403?

Senator RIBICOFF. No, I do not think so.

Senator HRUSKA. It says if any word or statement required by this act is not prominently placed thereon with such conspicuousness and in such terms as to render it likely to be read and understood by the ordinary individual.

Senator RIBICOFF. But you try to go into court, and you are sitting as a judge, and they bring in to you any one of those cans, and I do not think you could get a conviction from any judge or an order to cease and desist, or anything else, on the labels on the cans that I gave

you.

I think each one of those labels on those three cans of baking powder complies with the present law, and I cannot imagine a Secretary or a Commissioner of Food and Drug or the General Counsel's Office going into any court and trying to stop a practice like that under the authority that he now has.

I do not think he has got the authority. I think that he should have the power to make regulations, as in the other laws, to really do the job, and I do not think that the present law gives him that. I mean the fact that you have got confusion, that you have got a difference of opinion whether this authority exists or not, indicates there is the basic problem.

Senator HRUSKA. But your bill at the top of page 3 says that the regulations shall prescribe minimum standards with respect to the location and prominence of the statements of the net quantity of contents appearing upon such packages containing any consumer commodity, and so forth.

Could not the same criticism be directed to that because that is lifted virtually out of the present Food and Drug Act? Senator RIBICOFF. No.

Under Senator Hart's bill, the chances are you would not be having these fractional ounces in things like baking powder, and, if you had a can that had 1 pound of baking powder in it, it certainly would be a different-sized can than one that had 14 ounces of baking powder in it.

Now, under the present food and drug law there is nothing that you can do about that.

Senator HRUSKA. This has to do with statements of net quantity of contents.

But here we have in section 403:

"If the container is so made, formed, or filled as to be misleading, it is a misbranded article," and subject to all of the proscriptions of the law, and that can be and it is, is it not, Senator Ribicoff, that section 403 is implemented by regulations that have been promulgated by the Federal Trade Commission or by the Food and Drug Administration.

I have here the general regulations for the enforcement of the Federal Food, Drug, and Cosmetic Act, and turning to the subject of food, there are 13 finely printed columns of regulations pertaining to the labeling and the devices and the type of weight and everything else of food. Is that not done now?

Senator RIBICOFF. No, it is not.

Senator HRUSKA. Can it not be done now?

Senator RIBICOFF. I do not think so, sir, because I do not think that you have got the grant of authority here to make these regulations, give them the weight of law. They are interpretive regulations at the present time and not regulations that have the force of law like the other acts that have to do with weights, labeling, and packaging that we have.

Senator HRUSKA. Is it your suggestion that these regulations to which I refer are advisory and that violation of those regulations is not punishable or enforceable?

Senator RIBICOFF. I would say we would hope they would be more than advisory; we would hope they would be enforcible.

Senator HRUSKA. I mean these that we now have.

Senator RIBICOFF. But there are many sections there that you could not go into a court and get anything done with it.

Senator HRUSKA. Whose fault is that, if they are not written properly?

Senator RIBICOFF. I think it is the fault of the Congress of the United States by not giving the proper authority to the Food and Drug Administration and the Federal Trade Commission, sir.

I mean we had that same problem when we came to the drug bill last year and tried to put that through, and the same argument was made that the Food and Drug Administration had this authority, and we did not have the authority.

It took a national tragedy to straighten that one out.

Now, I think you do not have here the problems of health involved, but I do think that we are doing a fantastic job of gypping to death the housewives of America by these one-quarter ounces, these onetenths of a cent and a half a cent, and when you multiply this general thing that is going on throughout the United States, I think it is unfair and it is wrong, and I think that the Congress of the United States should think that it does have an obligation to protect the pocketbook of the housewives of America.

Senator HRUSKA. Now, Senator, you made reference to the Drug Act. The record in the hearings that we had before this same committee will show that the Food and Drug Administration did not exercise, to any substantial extent, the power to amplify by regulation the procedures for the approval of drugs which it had in the act. Commissioner Larrick so testified. This is of the same brand. There is statutory authority here, and, if it is not used, there is no assurance that it will be under a new act which gives the Secretary discretionary authority to do the same things.

Senator RIBICOFF. You and I disagree.

Senator HRUSKA. What makes anyone think that, because it is not done under one act, that it will be done under another?

Senator RIBICOFF. Because it is the opinion of many sound lawyers that the Secretary and the Commissioner of Food and Drug do not have the authority.