Senator HART. The concluding witness today is the vice president of the National Confectioners Association, Mr. L. R. Hopkins, who is also the vice president of Stephen F. Whitman & Son, of Chicago.

Mr. Hopkins, one of the things that you cannot predict around here, and which is one of these uncertainties because everybody fears regulations, is how long the hearing is going to last.

I am sorry you had to sit and wait so long.

Mr. HOPKINS. That is all right, sir.

STATEMENT OF L. R. HOPKINS, VICE PRESIDENT, NATIONAL CONFECTIONERS ASSOCIATION, CHICAGO, ILL.; ACCOMPANIED BY JAMES E. MACK, WASHINGTON REPRESENTATIVE

Mr. HOPKINS. Mr. Chairman, my name is L. R. Hopkins. I have been associated with the Whitman division of Pet Milk Co. of Philadelphia, confectionery manufacturers, for the past 40 years and I appear as vice president and chairman of the Washington committee of the National Confectioners Association which is a national trade association composed of confectionery manufacturers located throughout the United States and suppliers of goods and services to the industry. It is estimated that the manufacturer members of the National Confectioners Association produce approximately 85 percent of the confectionery manufactured in the United States.

PURPOSE OF APPEARANCE

This appearance is entered to express the strong opposition of our industry to S. 387. First I shall discuss the application of the provisions of the bill to the confectionery industry and then explain our basic or general reasons for opposing this proposed legislation.

APPLICATION OF THE PROVISIONS OF THE BILL TO THE CONFECTIONERY

INDUSTRY

1. Section 3A (c) (1) requires that the net quantity of contents "be stated upon the front panel of packages ***" It is customary for confectionery manufacturers to state the net weight on the front panel of packages. However, there are notable and important instances where this is either not feasible or desirable. The Food and Drug Administration has recognized this situation and under the reasonable language of existing law does not require that the net weight be stated on the front panel in all instances. Recently, however, in giving approval to certain packages and permitting the net weight to be stated elsewhere on the packages, it has been pointed out by Food and Drug Administration officials that FDA would have difficulty making such a ruling if S. 387 should become law.

Let me give you a few examples. Valentine's Day is one of the biggest in the candy year. You are all familiar with the many valentine features. For illustration, let me mention just one, that is, valentine hearts. These are an especially decorative item. Frequently the heart-shaped box is covered with satin, flowers, or other designs. The Food and Drug Administration has recognized that it would ruin such packages to have the weight and ingredient declaration placed

on the front panel and accordingly it is usually placed on the bottom of the box, with no known consumer deception or dissatisfaction. There are also many other candy packages which feature scenes or special designs in which it is not in the interest of anyone to place required information on the front panel.

In the case of many candy bars, the design of the label in relation to the size of the package is such that placing the net weight on the front panel is not feasible. For example, a manufacturer may want to have the front panel consist entirely of clear cellophane so that the prospective customer may observe the nuts, or other ingredients, as well as the colors of the candies which serve as a sales stimulant of the product which would be obscured by the printing on the cellophane. Candy sales are 91 percent based on impulse buying according to the Sixth Du Pont Consumer Buying Habits Study in contrast to a 69percent average for all items surveyed.

2. Section 3A (c) (2), in our opinion, would set a new high for Government intervention and domination of private enterprise. This section, which establishes standards with respect to location, prominence of statements of net contents, and minimum type size, would affect the selection of colors. What would be left for initiative, imagination, and eye appeal if the Government should dictate location of required statements, type size, and other makeup? Certainly the manufacturer should be required to state the specified information so as "to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use" as is required under current law, but not to have the makeup of his label completely dictated by the Government as would be done under this provision.

3. Section 3A (c) (3) would prohibit the addition to required statements of net quantity of "any qualifying words or phrases." This would cause a tremendous public disservice. Let me provide some illustrations.

Halloween is a big day for the youngsters, but happily it is also a big day for the confectionery industry. The trick-or-treat activity of youngsters has largely replaced the destructive pranks of former years. However, the housewife knows well that she must have an adequate number of units of treats to accommodate the anticipated callers. She counts the youngsters in the neighborhood and, for example, may conclude that she needs 40 units. Therefore, packages containing units intended for use in connection with Halloween, state the number of units in the package in addition to the net weight statement required by law. For example, the label might read "one pound" and underneath might be stated "30 pieces." In this way the housewife needing 40 units would know that she would need to purchase two packages. Otherwise she would not know whether or not she would be obtaining her required number of units. In this instance, the information which states the number of units is more important to the housewife than the net weight statement required by law, which we, of course, feel should continue to be required.

In purchasing units of candy canes, for example, for a children's Christmas party, the number of canes or candy sticks contained in the package is the vital information which the housewife needs. Usually in purchasing stick candy the purchaser is more interested in know

ing how many units are in the package than the net weight. Another example in the case of individually wrapped candy, customers, in addition to wanting to know the net weight, also desire to know what is the wrapped weight of the package. Therefore many manufacturers, after stating the net weight prominently, frequently state, in equal or less prominence, the wrapped weight of the package entirely as a convenience to customers.

Under this subsection, all of these additional statements which are distinct services to the customer and containing needed information might be prohibited. This is because S. 387 while in section 3A (c) (3) prohibits the addition of "any qualifying words or phrases" to the required statements of net quantity, also provides in section 2 of the bill for the continuance in effect of the Federal Food, Drug and Cosmetic Act. Section 403 (e) of the Federal Food, Drug and Cosmetic Act requires "an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count * * Section 1.8(2) of the implementing regulation in part provides:

The statement shall be expressed in the terms of weight, measure, numerical count, or a combination of numerical count and weight or measure, which are generally used by consumers to express quantity of such food and which give accurate information as to the quantity thereof. But if no general consumer usage in expressing accurate information as to the quantity of such food exists, the statement shall be in terms of liquid measure if the food is liquid, or in terms of weight if the food is solid * *

The Food and Drug Administration has held this to mean net weight labeling in the case of confectionery, to which we have no objection, because, under existing law, qualifying words and phrases, as I have illustrated, are not objectionable although they would be objectionable under S. 387 as we interpret it.

4. Section 3A (c) (4) is designed presumably to terminate so-called cents off promotions. Frequently confectionery items of the same assortment are packaged in different sizes. From time to time the manufacturer may want to have a sales promotion featuring a particular size which at that time represents a better value to the consumer. Under this proposal, he could not indicate which of the packages represents the better value. The customer would have to be armed with pencil and paper and divide the weight by the price in each instance so that the results could be compared. The customer would be rendered a distinct disservice if the manufacturer could not continue to indicate which item represents the better value by merely stating, for example, on a package, "better value." However, as we read the language of this subsection, such service to the consumer would be prohibited.

5. Section 3A (c) (5) provides for exceptions to the foregoing rigid and, what we believe to be, unreasonable requirements, but the exceptions would be at the complete discretion of administrative authorities who might be reasonable or who might not be reasonable. In any event, in the case of the required information, again we say that the provisions of existing law requiring information to be placed with such conspicuousness 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" is a far better, fairer, and more reasonable means of control than are the requirements of subsection 3A (c)

(1) and (2) and that the prohibitions contained in subsections 3A (c) (3) and (4) are inherently bad.

6. Section 3A (c) (6) would prevent the placement upon any package of an illustration which may deceive retail purchasers as to the contents of that package. Obviously this is a well-intended provision. However, here again we believe that the provision of section 403 (a) of the Federal Food, Drug and Cosmetic Act provides far better legislative control. As you know this subsection provides that a food shall be deemed to be misbranded "if its labeling is false or misleading in any particular."

There have been reports that the basic purpose of this subsection is to prevent a picture or an illustration of a food on the package which is not contained in the package. However, it might be entirely reasonable and provide a public service, if a package of confectionary spice drops were to show on the cover a picture of a birthday cake decorated with the spice drops to illustrate how the spice drops might tastefully be used. Although this would not be a violation of subsection 3A (c) (6), unless deception occurred, a bureaucratic decision would be the determining factor. Everything considered, it would be far inferior as a means of handling the matter than the current adequate provision of law.

7. The various subsections of section 3A (e) are extremely disturbing to our industry. Section 3A(e) (1) authorizes the promulgation of regulations establishing the weight or quantity in which a particular commodity may be offered for sale. Perhaps administrative officials would not use this authority in the case of confectionary, but should they decide to use it contrary to the best recommendations of our industry, there would be absolutely nothing we could do about it. As far as the confectionery industry is concerned, this authority is one of the very worst provisions in the bill.

Everyone is familiar with the nickle candy bar. We respectfully suggest it is one of the consumer's best values today in our entire economy. The confectionery industry uses many raw materials and the price of most of these raw materials is highly volatile. The size of our nickle candy bar must be adjusted upward or downward from time to time as production costs fluctuate. For example, if it is a peanut bar and the price of peanuts goes up, the size of the bar must be reduced proportionately. Sugar is now selling at a much higher price than it sold for a year ago. The size of an item with high sugar content necessarily would need to be adjusted accordingly. For the Government experts to decree that candy bars could be sold only in 1-, 2-, or 3-ounce units not only would cause chaos in the industry but would prevent consumers from obtaining the products in a manner in which they have demonstrated a distinct preference. Sale of 5or 10-cent items in vending machines is one of the biggest sales outlets for the confectionery industry. We are sure it is immediately apparent to you the impossible situation which would result if the unit sizes were standardized and, therefore, the price instead of being 5 cents, necessarily would have to be 6, 7. 8, or 9 cents, or, in the case of 10-cent items, would need to be 11 cents or more. It would not be feasible to sell such items through vending machines. Problems would occur in the case of package goods. age goods lines some manufacturers do maintain a

In some packpolicy of not

varying the size of the package, but, instead, vary the price of the unit as costs of production vary. Sometimes these same manufacturers, in producing other packages for certain types of outlets in which certain prices have customer appeal, vary the size of the package as costs vary instead of varying the price.

8. Section 3A (e) (2) would permit the development of regulations covering sizes, shapes, or dimensional proportions. Is it desirable to destroy initiative, imagination, and salesmanship? Certainly size, shape, and dimensional proportions stimulate creative thinking, and appeal to the consumer. Today we have utilitarian packaging in so many of the commodities, both food and nonfood, which are sold in the marketplace. If Government regulations are issued regarding size, shape, and dimensional proportions, it would have a tendency to freeze progress in the field of creative packaging. We have heard much of the drabness and uninteresting nature of products offered for sale in Russian stores. Subsection 3A (e) (2), we feel, would get us in line to produce such packages.

9. We are not in favor of subsections 3A (e) (3), (4), and (5) but I shall not take the time of the committee to discuss, in detail, these subsections.

10. The meaning of subsection 3A (e) (6) is not clear, but it would seem to suggest that if administrative officials wish to require any information regarding the product on the label which would not be authorized under the other sections of the bill (which is difficult to imagine), such authority would be provided under this subsection. This is another power which we do not believe should be granted. 11. We would like to point out that there is no reference made in the bill to imports. Presumably the application of the bill would be the same in the case of imports, but its practical application could be considerably different. Imported products are manufactured outside of the United States and outside of the jurisdiction of our Government. Therefore, action could not be taken against foreign manufacturers who would not comply with the law or the regulations. Furthermore, inasmuch as the bill particularly exempts wholesalers and retailers, enforcement against products of foreign origin might be difficult. It is true that inspectors at the ports of entry could refuse entry, but it would be difficult for inspectors to be familiar with required packaging sizes, shapes, container types, and labeling for hundreds of different products.

Basic objections to the bill:

Now that I have discussed the application of the provisions of the bill to the confectionery industry, let me state our fundamental objections to the bill which we believe will generally be accepted by the business community, consumers, and, we are hopeful, by the Senate. Senator HART. Let me try to relieve the tension by saying that if the bill did all of what you have already described it does, you would not have to describe any other reasons for us. I just do not believe that it does.

Go ahead.

Mr. HOPKINS. Only a brief reference will be made because such reasons for opposition we feel are so apparent, will be so rapidly recognized by the Senate, and undoubtedly will be alluded to repeatedly by other witnesses.