Commission, the Alcoholic Tax Unit which regulates beverage advertising and liquor advertising and labeling, and the Department of Agriculture, whether or not it is possible to submit your samples and obtain an advance opinion in some cases informally or, in other cases, formally, as to whether that packaging is deceitful or misrepresented in any respect? Mr. BALLENTINE. I cannot testify too fully as to my own knowledge of that. I have an understanding. But I would say this, that if this cannot be done at the present time it should be done because industry should be able to come in and. before they invest in packaging machinery and in packaging and in labeling, they should be able to come in and find a guideline so that they will not be found in violation at a later date. Mr. BAILEY. Well, we have had testimony in this hearing that every one of the agencies that I have mentioned will give you either an informal or a formal opinion as to whether or not it is misleading or whether or not it could be deceptive. It only remains for the manufacturer to take advantage of these opportunities. I am sure that you will realize, and most of us will, that it is always the sharp operator or the one who wants to cut corners in any industry, whether it is packaging or any professional pursuit, law or medicine, that brings the manufacturing industry or the profession into disrepute because of the practices which are outside the law. I do not think you can legislate on controlling human nature. You are going to have a great deal of difficulty because the law and the proceedings before all of the agencies are such that you would get these advance opinions and then you cannot comply with the law as the manufacturer wants to Mr. BALLENTINE. Certainly, I do not anticipate that this law will do a perfect job, and I do not anticipate that every person who comes in and finds out what the rules are will abide by them. Some will go out and try to find some way to get around them sometimes but, nevertheless, the overwhelming majority of business wants to do the right thing, and they will be guided by the guideline whether they like it or not. Mr. BAILEY. Well, then there is the sharpshooter which you acknowledge that you have to bring in in an after-the-fact case then, do you not? Mr. BALLENTINE. Oh, sure, in enforcement of the law. I am talking about now the preventive phases of the Mr. BAILEY. Well, you do not prevent that particular operator under this bill Mr. BALLENTINE. That is right. Mr. BAILEY (Continuing). Or any other Mr. BALLENTINE. But you are talking about a very small percentage of the business. You are talking about the fringes. You are not talking about the real heart of American industry. Mr. BAILEY. Well, the regulatory agencies are involved in policing these areas today. Mr. BALLENTINE. Let me say this to you as a law enforcment officer. When we establish a rule or regulation we like to feel that we have at least 90 percent of business with us, and we prefer to have 95. If we have 90 or 95 percent of the businesses with us or industry with us, then we feel like we can bring into line rather effectively the 5 or 10 percent fringe, but without that support from industry in the first place we might not even have the law, but with that support from industry we will be able to do a pretty good job of enforcing the fringe element into line. Mr. BAILEY. Thank you, sir. Senator HART. Commissioner Ballentine, before you leave, let me express to you again our appreciation for what I think was an excellent presentaton, both in the prepared statement and the responses to the questions from the committee counsel. I think that you have directed some of those comments at what really are some of the most vexing questions that confront the committee and I am sure we will benefit from them. We now say Amen more loudly to the description Judge Ervin gave of you. Commissioner McIntyre, as the chairman of the executive committee, is there anything you would care to add? STATEMENT OF GEORGE S. MCINTYRE, DIRECTOR OF AGRICULTURE, STATE OF MICHIGAN Mr. MCINTYRE. Thank you very much, Senator. I would only say that the statement made by Commissioner Ballentine does represent the views of the executive committee as were expressed in the meeting yesterday. From my personal standpoint I think it is important that the industry know the rules that are set up and I concur wholeheartedly in Mr. Ballentine's statement that you must have 90 to 95 percent of the industry agreeing to a situation if it is going to be successfully enforced. One other part that I would like to reemphasize is the need for cooperative arrangements or cooperative agreement between the Federal Government and the State governments. I feel very strongly in this particular area. I think that both from the standpoint of efficient and economical enforcement procedures we need to have cooperative agreements or cooperative relationships, and from the standpoint of industry itself I think we must not have a great army of people running to industry. This can be partially avoided by cooperative arrangements. I hope that either the bill or regulation or the hearing record will clearly express the desire of the committee for cooperative arrangements or agreements between the Federal Government and those States which are doing an acceptable and creditable job of enforcement. I think this is real important. Senator HART. So do we, Commissioner, and we will make every effort to make very clear our feeling on this, whether by law or otherwise. Again, gentleman, thank you very much. 97158-63-pt. 1-15 Mr. BALLENTINE. Thank you, Mr. Chairman and gentlemen. Senator HART. Senator Olin Johnston, of South Carolina, has been, I am not sure an interested observer, but surely a patient one. He is a member of the Judiciary Committee. We are especially grateful that he would take the time to come to present our next witness. STATEMENT OF HON. OLIN D. JOHNSTON, A SENATOR FROM THE STATE OF SOUTH CAROLINA Senator JOHNSTON. Senator Hart and subcommittee, I am certainly glad to come here today to present to you Carl Stender, deputy commissioner of agriculture, who has been with the South Carolina Department of Agriculture for 30 years and was assistant to the commissioner of agriculture for 12 years prior to becoming deputy commissioner. He served as director of the bureau of inspections and is one of South Carolina's recognized experts in this field. He is a graduate of Clemson College. At the present time he is also chairman of the National Conference on Weights and Measures. I had him in my administration during the two terms I was Governor. I know Mr. Stender very well and know his ability. I have not read what he will bring to you this morning but I will say that I shall read it and I shall be guided to a very large extent in what I do with this particular bill. And I must say being on the Judiciary Committee that I think that we of the Senate should guard this one thing. I am almost sick and tired of all the laws being made down at some department. If there is any question whatsoever whether or not we have delegated them that right, if there is any question in the minds of any Senator I think we should take it in our hands and pass a law and let it be known what our desires are. And for that reason I shall look into this matter very thoroughly and knowing Senator Hart as I do, I shall follow in what he has to say to a very large extent also. So I am glad to bring with me somebody that I consider an expert and I regret very much that I cannot stay with you. So, Mr. Stender, I am glad to have you come here and I present you to this committee at this time. Mr. STENDER. Thank you. Senator HART. Thank you very much, Senator. Mr. Stender, we welcome you. Sorry that you had that wait. STATEMENT OF CARL H. STENDER, DEPUTY COMMISSIONER OF AGRICULTURE, STATE OF SOUTH CAROLINA Mr. STENDER. Senator Hart, and members of the committee, I want to express thanks for the privilege of being here, and secondly I would like to thank Senator Olin Johnston. Except for one statement, one word, that word "expert"-somehow or other I never did like the word "expert." I think that is supposed to be a liar away from home, is that what it is, or a statistician? Senator HART. There are many definitions and I am sure the honorable definition is the one you fit. But you go ahead. Mr. STENDER. And for another matter here, I am from South Carolina which is a little south of North Carolina. We have always fo lowed North Carolina and I see I have the privilege to follow North Carolina today. Now, for the record, my name is Carl H. Stender and I am deputy commissioner of agriculture for the State of South Carolina. I have as personal qualifications a long period of service in the South Carolina Department of Agriculture. This service includes the actual performance of and supervision in enforcing fair trade laws. My presence today is in the capacity of the chairman of the National Conference on Weights and Measures. This conference, which meets annually in Washington, D.C., is a congress of weights and measures officials from every State in the Union, and is a policymaking body. The last national conference was held in June 1962 prior to the introduction of S. 3745, consequently the conference did not have the opportunity to declare a position on the original truth-in-packaging bill. The statement to follow represents the collective observations of the 14 members of the conferences' executive committee. Two members of said committee do not consider the conference should speak for or against S. 387; 1 member is noncommittal; 11 members approved presenting a statement. Those approving representation at this committee hearing feel that S. 387 introduced in the present Congress, as a revision to S. 3745 introduced in the 1962 Congress for legislative expediency, embraces constructive provisions to protect fair trade practices beneficial to agriculture, commerce, and industry. These three basic groups provide and sustain all of us as the Nation's consumer group. It may be well to point out that the duties of weights and measures officials vary according to the extent of the laws existing in their local jurisdictions. Some jurisdictions embrace functions of all the enforcing agencies designated in S. 387. Some jurisdictional powers cover only testing weighing and measuring equipment. Some weights and measures laws do not provide for package checking beyond net weight content. The lack of national uniformity in law enforcement has permitted much of the present questionable trade practices to become existent. S. 387 has the potential to augment enforcement procedures in jurisdictions with a limited legal program. In jurisdictions which do not have specific laws as to interstate products entering intrastate commerce, S. 387 is expected to provide that items in violation will not be permitted to enter intrastate commerce. Mr. Chairman, I can state to you that weights and measures officials are concerned about the problem of deceptive packages in consumer trade. In the inception of this practice there was no noticeable change from good trade programs in declarations of net weight, measure, or count. It was not too long, however, before content declarations were also subjected to deception. Retail merchants were the first to complain for they resented the necessity for increased shelf space for slack-filled packages which produced less sales dollars for the same high-priced display area. Retailers state the claims made by manufacturers concerning slackfilled packages are an imposition to their intelligence. Weights and measures officials readily agree with the merchant. The "shake down" alibi does not impress either the merchant or the weights and measures official. "Shake down" did impress the consumer, however, and he questioned, why, what for, and how much? When the word spread around that the extra cardboard in the slackfilled packages increased the retail cost, the housewife became concerned. She did more than ask questions, she started shaking packages and returning them to the shelf. You can imagine the manufacturer's reaction. The curve on the sales chart was turning down and the packaging cost curve was space bound. Creative minds in industry designed new packages, new names for the product, declared a price war to rid the shelves of the old stock, and the merry-go-round started again. On the merry-go-round, the daring and chance-taking traveler generally gets the prize ring and another free ride. The others get off and this is what is happening to many slack-filled packages. This may come as information to industry, but many packers are weary of the merry-go-round. They want off, and some are quietly supporting S. 387. They admit the relief will not come to them as a group, and that some action outside of their ranks will have to accomplish what they cannot do within the ranks. Mr. Chairman, this is not a deceptive statement. The well-established manufacturer, whose products have become a household word in our homes, is fed up with having to continually buy new fill machines, new packages, ever-changing packing cases, increased tons and tons of cardboard, and then faces rising shipping costs and the fact that he is not selling any greater tonnage of his finished products. Equally true, manufacturers are tired of being agents for flower seed, kitchen towels, wash cloths, cake pans, pie pans, china, and what have you, in trying to fill space. Last October, shortly after S. 3745 was introduced, the Southern Weights and Measures Association held its 17th annual conference at Nashville, Tenn. Between the regular scheduled meetings, the representative of a highly respected national manufacturer requested a closed discussion with some of our members. This representative frankly stated that his company was opposed to the trend in deceptive packages and was soliciting aid in bringing about a return to normalcy. He admitted that the packaging and advertising division of his organization had become more important than the section manufacturing the products. He indicated that producers of raw products and the distributors had become necessarily evils. This representative could visualize relief in S. 387. Only recently the department with which I am associated conducted a survey of deceptive packaging. Fifteen inspectors located in various sections of the State submitted a list of 10 items which they considered deceptive packages. The fact that these inspectors were separated and had no opportunity to consult each other prevented any influence as to their decisions. In their lists of more than 200 packaged products, there were many identical selections made. A total of 86 items were among those commonly selected by the 15 inspectors. You may propose the question. Did we condemn these packages! No, we did not. Every item was a product from interstate commerce, and, in all cases items were known to the consumer. Enforcement |