"(6) require (consistent with requirements imposed by or pursuant to the Federal Food, Drug, and Cosmetic Act, as amended) that sufficient information with respect to the ingredients and composition of any consumer commodity (other than information concerning proprietary trade secrets) be placed in a prominent position upon packages containing that commodity and upon labels affixed thereto.

"(f) (1) Before promulgating any proposed regulation under subsection (e) with respect to any consumer commodity, the Secretary or the Commission, as the case may be, shall (A) consult with other agencies of the Government having special competence with respect to the subject of that regulation concerning the scope, application, form, and effect thereof, (B) publish in the Federal Register reasonable advance notice of intention to promulgate such regulation, and (C) accord to persons who would be affected thereby reasonable opportunity for consultation with respect to such proposed regulation.

"(2) All regulations adopted under this section shall be promulgated in conformity with the provisions of the Administrative Procedure Act.

*(3) Any regulation promulgated under this section may be modified by the promulgating authority, upon the initiative of that authority or upon application made by any person affected by that regulation, whenever such authority determines that such modification is necessary to conform to the requirements of this section or to any change occurring in the method of packaging, labeling, distributing, or marketing of any consumer commodity.

"(g) Upon written request made, by the officer or agency authorized or directed by this section to establish packaging or labeling regulations as to any consumer commodity of any class or kind, to any producer or distributor thereof, such producer or distributor shall transmit promptly to that officer or agency a true and correct sample of each package and label used or to be used by that producer or distributor for or in connection with the distribution in commerce of any particularly described consumer commodity of that class or kind. Any person who, with intent to evade compliance with the requirement of this subsection (g), fails to transmit any such sample to such authority promptly upon receipt of such request shall be fined not more than $1,000, or imprisoned not more than one year, or both.

“(h) (1) Any consumer commodity introduced or delivered for introduction into commerce in violation of any regulation promulgated by the Secretary of Health, Education, and Welfare under this section while that regulation is in force and in effect shall be deemed to be misbranded within the meaning of chapter III of the Federal Food, Drug, and Cosmetic Act.

"(2) Any violation of any regulation promulgated under this section by the Federal Trade Commission while that regulation is in force and in effect shall constitute an unfair or deceptive act or practice in commerce in violation of section 5(a) of the Federal Trade Commission Act.

"(3) The remedy provided by section 16 of this Act shall be available to any person threatened with loss or damage by any violation of any such regulation while that regulation is in force and in effect.

"(i) Each officer or agency required or authorized by this section to promulgate regulations for the packaging or labeling of any consumer commodity shall transmit to the Congress in January of each year a report containing a full and complete description of the activities of that officer or agency for the administration and enforcement of this section during the preceding calendar year. "(j) A copy of each regulation promulgated under this section shall be transmitted promptly to the Director of the National Bureau of Standards, who shall (1) transmit copies thereof to all appropriate State officers and agencies, and (2) furnish to such State officers and agencies information and assistance to promote to the greatest practicable extent uniformity in State and Federal standards for the packaging and labeling of consumer commodities. Nothing contained in this subsection shall be construed to impair or otherwise interfere with any program carried into effect by the Secretary of Health, Education, and Welfare under other provisions of law in cooperation with State governments or agencies, instrumentalities, or political subdivisions thereof. "(k) As used in this section—

"(1) the term 'consumer commodity', except as otherwise specifically provided by this paragraph, means any food, drug, device or cosmetic (as those terms are defined by the Federal Food, Drug, and Cosmetic Act), and any other article or commodity of any kind or class which is customarily produced or distributed for sale through retail sales agencies or instrumentalities for consumption or use by individuals for purposes of personal

care or in the performance of services ordinarily rendered within the household and which usually is consumed or expended in the course of such consumption or use. Such term does not include (A) any meat, meat product, poultry, or poultry product, or any commodity subject to packaging or labeling requirements imposed by the Secretary of Agriculture pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act or the provisions of the eighth paragraph under the heading 'Bureau of Animal Industry' of the Act of March 4, 1913 (37 Stat. 832-833; 21 U.S.C. 151–157), commonly known as the Virus-Serum-Toxin Act; (B) any beverage subject to packaging or labeling requirements imposed under the Federal Alcohol Administration Act (27 U.S.C. 201 et seq.); (C) any household appliance, equipment, furniture, furnishing, or other durable article or commodity; or (D) any article or commodity intended for use in the maintenance of the exterior, or for the repair of any part, of any structure, or for use in the maintenance or repair of any article or commodity described by clause (C) of this sentence;

"(2) the term 'package' means any container or wrapping in which any consumer commodity is enclosed for use in the delivery or display of that commodity to retail purchasers thereof, but does not include (A) shipping containers or wrappings used solely for the transportation of such commodity in bulk or in quantity to wholesale or retail distributors thereof or (B) containers subject to the provisions of the Act of August 3, 1912 (37 Stat. 250, as amended; 15 U.S.C. 231-233), the Act of March 4, 1915 (38 Stat. 1186, as amended; 15 U.S.C. 234–236), the Act of August 31, 1916 (39 Stat. 673, as amended; 15 U.S.C. 251-256), or the Act of May 21, 1928 (45 Stat. 685, as amended; 15 U.S.C. 257–257i);

"(3) the term 'label' means any written, printed, or graphic matter affixed to any consumer commodity; and

"(4) the term 'person' includes any firm, corporation, or association." (b) The amendment made by this section shall take effect on the first day of the sixth month beginning after the date of enactment of this Act.

SEC. 2. No amendment made by this Act shall be construed to repeal, invalidate, supersede, or otherwise adversely affect

(a) the Federal Trade Commission Act or any statute defined therein as an Antitrust Act;

(b) the Federal Food, Drug, and Cosmetic Act;

(c) the Hazardous Substance Act; or

(d) any provision of State law which would be valid in the absence of such amendment unless there is a direct and positive conflict between such amendment and such provision of State law.

Senator HART. This measure is the result of extensive hearings and of responsible reaction from business and consumers to a similar bill introduced in the closing days of the 87th Congress.

The survival of our society cannot depend on strength of arms alone. We must also be concerned with values and standards upon which our civilization is based.

Rapid social and technological advances of the last several decades have brought new pressures and tensions, as well as new techniques of marketing. To meet these new conditions it is necessary that the members of our society be able to distinguish fact from fiction, true values from false values. They must be able to rely upon the truthfulness of the labels our society employs.

Mindful of the record made in the hearings conducted by this subcommittee, I say it is essential for the health of our society that we correct some of the packaging and labeling practices which have been disclosed.

Ar Dr. Carroll Quigley, eminent American historian, testified in this same room a year ago:

For 5,000 years, down to the present time, the truthfulness of written labels has been a fair indication of the moral health of our society.

He observed that it is from the marketplace that values and standards percolate into other phases of our daily lives. He said:

Training in ambiguity and dishonesty in the use of terms (on packages and labels) leads to a confusion of thought, and confusion of thought leads to a slow attrition of general social honesty and clear thinking.

What does this bill attempt to do?

It is an effort to bring up to date the antitrust laws by recognizing the emergence of a relatively new form of nonprice competition, packaging, and labeling.

The bill does this by facing up to the realities of present-day marketing conditions, naming as restraints of trade those practices brought about by unfair and deceptive methods of packaging and labeling certain consumer commodities. We do this by amending the Clayton Act to provide a procedure by which guides can be established to prevent such restraints.

The bill is an effort to make the new salesman for the product-the package and label-fairly represent the product it is selling.

It is an effort to increase the effective spending power of the average family by reducing needless waste in market basket expenditures resulting from those marketplace practices which this bill seeks to arrest.

It is an effort to invigorate the economy by making it more likely that profits will be channeled to the more efficient and honest manufacturer.

The bill is an effort to assist the honest businessman by upgrading the economic value of fair packaging and labeling practices.

The industries affected by the bill have combined sales which are equal to those of automobiles and steel combined. Some persons in these industries have told me of their qualified opposition. They will be given every opportunity to present their views.

Some of these persons approve, in the main, the objectives of the bill, but are concerned over specific sections. They can be of immense aid, not only to their own companies, but to the committee by the testimony they will present here.

Some have flatly announced their opposition without qualification to any measure designed to meet the objectives of this bill. Among those opponents are individuals who consider any Government attempt to act in matters affecting the public interest as an unwarranted assault on free enterprise. This seems to me to be the voice of Rip Van Winkle in the 20th century.

The record is clear that industry has not been able to correct these conditions itself, although almost 2 years have passed since these hearings first began. And this failure to act is no reflection on those involved. Rather, it reflects the complexity, diversity, and intense competition in the economic sector involved.

But the health of our society and our economic structure depends on honest, truthful practices in the marketplace. If these practices are allowed to break down, then clearly it is the responsibility of Government to repair them by filling a void in the law.

We believe these unfair competitive practices can be corrected with the minimum of Government direction that this bill provides.

The ground swell of public support for remedial legislation indicates that the people of this country want measures taken to correct the abuses.

If the public interest is to be served, it is imperative that we devise the best bill possible. To that end we welcome the constructive testimony we know we will receive during the course of these hearings.

The subcommittee begins today the first in a series of these hearings, and I am delighted that the distinguished Senator from Nebraska, Senator Hruska-whose schedule, I know, is complicated by a Rules Committee meeting which he is, I am sure, going to have to attend— has been able to join us.

I see a very distinguished member of the full committee, the Senator from North Carolina, Senator Ervin, who has come, and I hope his time will permit him to stay a while.

Senator Hruska, do you have a statement?
Senator HRUSKA. No, I do not.

I shall have to leave after a while, when the committee calls, and I assume the same applies to the Senator from North Carolina.

We have to get some money to get the subcommittee's financing funded so we can proceed with the work.

It is my understanding that Senator Dirksen, also a member of the subcommittee, is required, because of the Rules Committee meeting, to be elsewhere, but he has asked that a statement be filed in his behalf at this point.

Mr. CHUMBRIS (reading):

Mr. Chairman, normally, before expressing any views on proposed legislation, I would wait until the record has been completed. But because of misinterpretations of the testimony rendered during the subcommittee hearings in 1961 and 1962 on packaging and labeling practices, I believe it would be well to set the record straight at this point.

It is my considered judgment that the Senate Antitrust and Monopoly Subcommittee does not have jurisdiction over the proposed legislation, even though it is purported to amend the Clayton Act by adding a new section 3A. The purposes and objectives of this bill just do not fit into the philosophy and purposes of the Clayton Act. I believe the record of the previous hearings shows that this subcommittee wrote to the chairman of the Senate Commerce Committee pertaining to the Antitrust Subcommittee's investigation on packaging and labeling practices and the chairman of the Senate Commerce Committee replied that, if legislation is needed, the Senate Commerce Committee, which has jurisdiction, would look into the matter. At the appropriate time I may move that S. 387 be transferred to the Senate Commerce Committee. I ask that the letters to and from Senator Warren G. Magnuson be placed at the end of my statement. There is no need for S. 387. Commissioner George P. Larrick of the Food and Drug Administration testified on Tuesday, March 20, 1962, that "the Federal Food, Drug, and Cosmetic Act, enacted on June 25, 1938, is fundamentally a consumer measure. In addition to requiring that foods be clean, sound, and wholesome, it has provisions designed to inform the consumer about the food in the package and thus permit her to make intelligent selections at the marketplace. "The law has, for example, a provision for the establishment of standards of identity, quality, and fill of container. In establishing any such standard there is a clear-cut requirement that such action must be one which will promote honesty and fair dealing in the interest of the consumer.

"In addition to prohibiting false or misleading statements in the labeling of foods *** the law contains several provisions for supplying positive information * that include the requirement for declaring an accurate statement of the quantity of the contents; a prohibition against deceptive packaging: the requirements for declaring ingredients * and there is a provision which states that any information required by the law to appear on the label must be so printed, conspicuously, as to be likely to be read and understood by the ordinary individual under customary conditions of purchase and use"

Mr. Larrick pointed out that his agency will determine whether administrative action could be taken, improving the Food and Drug Act regulations, or whether Congress should be asked for some new law. I know of no recommendation since

that date that Commissioner Larrick has made for such a new law. Instead, he has asked the Department of Health, Education, and Welfare for a study.

At this point, Mr. Chairman, I shall read from a press release under date of Friday, January 18, 1963, issued by the U.S. Department of Health, Education, and Welfare, Food and Drug Administration:

"U.S. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, FOOD AND Drug ADMINISTRATION, WASHINGTON, D.C.

"[For release in a.m. papers Friday, Jan. 18, 1963]

"Secretary of Health, Education, and Welfare, Anthony J. Celebrezze announced today he has approved a recommendation from George P. Larrick, Commissioner of Food and Drugs, for a study of State and local food and drug laws and their administration.

"The study was first suggested by the Association of Food and Drug Officials of the United States. It is made possible by a sum of $300,000 included in the Department's current appropriation for this purpose.

"Secretary Celebrezze said the study was strongly supported by the Citizens Advisory Committee on the Food and Drug Administration, which submitted its report last October. He said it would be made by a qualified nonprofit organization, such as a foundation or university operating under contract with the Department.

"This survey will cover State and local activities with respect to foods, drugs, therapeutic devices, cosmetics, and hazardous substances used in the home," the Secretary said.

"It should bring to light any needed improvement in laws, organization, and support for Federal-State coordination. The organization conducting the study will be requested to include in its report specific proposals for bringing about the improvements they recommend.

"Fortunately, the study will be able to utilize the great amount of background information that has already been obtained by the Intergovernmental Relations Subcommittee of the House Committee on Government Operations, under the chairmanship of Congressman L. H. Fountain. This will make it possible to accomplish far more than could otherwise have been done with available funds.'

"It may be further pointed out that the Federal Trade Commission has jurisdiction over unfair method of competition in commerce, and unfair or deceptive acts or practices in commerce-which are declared unlawful. (See sec. 5, Fair Trade Commission Act, as amended in 1938. See also secs. 12, 13, 14, and 15 of said act.)

"Chairman Rand Dixon reviewed the various acts giving the FTC jurisdiction over packaging and labeling and reviewed some of the decisions of the FTC and the courts and he concluded that there can be no doubt that the Commission's (FTC's) general powers under existing law would authorize it to issue such orders when false or misleading packaging and labeling result in consumer deception. He cited the Supreme Court on United States v. Morton Salt Company, 338 U.S. 632, 647-648 (1950), when the Court held: "The fact that powers long have been unexercised well may call for close scrutiny as to whether they exist; but if granted, they are not lost by being allowed to lie dormant, any more than nonexistent powers can be prescribed by an unchallenged exercise. We know that unquestioned powers are sometimes unexercised from lack of funds, motives, or expediency, or the competition of more immediately important concerns." "

The above quotation, Mr. Chairman, reemphasizes the point stressed by Mr. Larrick that it is more of the lack of funds than existing law which permits the very few violators in the packaging and labeling industry. I have found nothing in S. 387, under its mandatory provisions, which would give authority which does not already exist or is not already legal under existing law, and there is nothing in the testimony of the witnesses who appeared in 1961 and 1962 which would justify changing existing law dealing with the packaging industry.

In the introduction of S. 3745 and S. 387 and during the course of hearings, reference was made to the fact that there are now 7,000 packaged goods in the stores and that the packaged goods become the salesman. Commissioner Larrick's testimony, at page 816, stated "in 1961 we had, out of 8,500 [samples examined],