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Wenatchee, Wash., March 22, 1966. Senator WARREN G. MAGNUSON, Senate Office Building, Washington, D.C.

DEAR SENATOR MAGNUSON: It appears S. 17 would repeal antiquated U.S. standards for fruit and vegetable containers of which many, if not all, are no longer in use. We urge that you seek enactment of this legislation.

Our industry has consistently opposed state and federal standards for fruit containers. New containers are continually being developed to deliver fruit to consumers with fewer bruises and in better condition. The trend is toward consumer packages such as three and four pound bags and small trays of six or eight apples over-wrapped with film. Master containers for these small packages will continue in an experimental stage for a considerable period of time and in the meanwhile it is quite likely new packaging will develop.

Packaging standards enacted into law are too inflexible and tend to stifle improved methods. We hope you will resist legislation that would require definite container specifications for fruits. Sincerely yours,



AUGUST 31, 1966. Hon. EDMUND S. MUSKIE, U.S. Senator, Washington, D.C.

DEAR ED: The Standard Container Acts of 1916 and 1928, which establish standard sizes and capacities for certain types of baskets and hampers used in the shipment of fresh fruits and vegetables, have been carefully reviewed by this department.

It is our belief that these Acts are outdated and no longer serve a useful purpose There have been great changes in the type of shipping containers for fresh produce since these laws were enacted. Most fresh fruits and vegetables are now sold by weight or count rather than by volume measure, thus eliminating any deception due to variations in container volume. Recent statistics show that less than 10% of the fresh fruits and vegetables are now marketed in the regulated type of containers. The Maine Department of Agriculture is in favor of repeal of these Acts. Very truly yours,




Mr. ATWOOD. Thank you.

Mr. Chairman and members of the committee, my name is Edward W. Atwood, of Portland, Maine, representing the Keyes Fibre Co., along with Mr. Cleveland.

Mr. Cleveland is vice president in charge of sales of the Keyes Fibre Co., and he will be the one that will probably field any questions that relate to the products of the company, because he is more familiar with them.

My function with the company, I am director and secretary, and I am a member of the law firm which is their general counsel.

We have filed with the committee a brief outlining our views and that brief is repetitious of what you have already heard, because it really repeats most everything that has been said by the other witnesses, and what has been contained in their briefs, so I am not going to read the brief but I would, if it is consistent with your practice,

like to supplement that brief with some specific comments which occur to me by reason of some of the questions which have been asked here today, and with regard to specific instances that have brought our company within the purview of these acts, or, more specifically, one of these acts, and the ways in which the provisions of one of these acts the 1916 act, has curtailed our planning of products and our ability to meet the demands and needs of our customers.

The 1928 act has no impact upon us. Our business, our primary business is the manufacture of molded pulp products and a large amount of these products are in the field of packaging. They are these molded pulp trays and tills and baskets, if you please, which you have all seen, I am sure, either manufactured by us or our competitors, in supermarkets, that they put produce in and weigh it and sell it to the housewife, and she takes it home, and almost 100 percent those products are sold by weight, and our containers are designed for that purpose.

We do make a berry basket which is designed to hold a quart, I think

Mr. CLEVELAND. A pint.

Mr. ATWOOD (continuing). A pint, which is similar to the oldfashioned berry box we are all familiar with in size.

We make a molded pulp basket which is very similar to the climax basket in shape, but where we first encountered trouble under this act was that a size of till about that long and that wide and that high, which would hold

Mr. Roush. I am not sure that can properly be reflected in the record. Would you like to put that in inches?

Mr. CLEVELAND. It was approximately a quart and a half.

Mr. ATWOOD. It would hold in dry measure approximately a quart and a half, but it was a size which was tremendously popular in the marketing end of it, because it carried a quantity which the housewife likes to carry home, and the store operator likes to accommodate her, and we like to accommodate him, because that itself is the way we make our living.

We found when we put this size on the market that we were in violation of this law, because this specified pint and quart and multiples of quarts, and we were in between. We had consultations about this with the people in the Department of Agriculture, some of whom are here today, and we received most courteous treatment. Every thing worked out extremely well. We agreed that we would not hold out to the public that this particular container was designed to sell these particular products, and under these circumstances and in the light of contemplated possible legislation, there has been no trouble about it at all, and we have refrained from the type of advertising that would indicate that these were designed for a particular product, small fruits and vegetables, for instance, because they are used for all sorts of things—they are used for large vegetables and they are used for many other food products also.

Then the question came up whether or not to suggest an amendment of law to add one more size which would clear us in that one item or to suggest repealing this act. I am talking about the 1916 act now, because we had no involvement under the 1928 act.

The Department of Agriculture indicated to us in the course of these conferences that they had finally concluded that the better move was

to repeal this act, and also the 1928 act, because of obsolescence and ambiguity, and for the many reasons so cited here today.

We would be much happier with repeal of the act because in our product development we are finding a variety of instances, where now that we have come under the eye of the Department of Agriculture and have discussed this law with them, we feel if we go ahead with our plans we may be in violation.

One thing that bothers us particularly is this phrase which Mr. Vivian has commented on, “other containers."

Now, you take the 1928 act, and that doesn't get into that realm at all, and section 1 of the 1916 act which deals with climax baskets doesn't get into it, but when you get over into section 2 of the 1916 act, which prohibits the manufacture and sale of-I will read the exact words in the law:

The standard basket and other container for small fruits, berries and rege tables shall be in the following capacities:

And then it lists the capacities we have been talking about.
Then it says:

It shall be unlawful to manufacture for shipment or to sell for shipment or to ship from any state or territory of the United States, District of Columbia, or any other state or territory of the United States or the District of Columbis any climax baskets or other containers for small fruits, berries and vegetables, whether filled or unfilled, which do not conform to the provisions of this Act.

Now, I think it has been stated here that that has been cured by administrative regulation, but the regulation, if I read it correctly, carries forward that very same thing.

I now have before me the regulations under this act issued by the Department of Agriculture and that has a definition of containers, and it carries forward this very same language.

I am reading from the regulation:

Container means climax baskets for grapes and other fruits and vegetables or for mushrooms and baskets or other containers for small fruits, berries, and vegetables.

So it seems to me that same vice, if it is a vice, is carried right forward into the regulation as well as appearing in the statute.

Mr. Roush. The regulation could not contravene the statute, could it?

Mr. Atwood. Only in, as I understand it, an administrative interpretation of law which is acted under for a substantial period of time may by virtue of that have the force of law, but here what I am saying is that the regulation itself only confirms what the statute says, and that is one of the things that scares us, this "other containers,” because if that is strictly construed by an administrative branch, which it isn't by this one, thank goodness, the impact of this law would then be that you could not sell any small fruits or any berries or any vegetables, and the Department says vegetables of any size, in anything but these particular sizes of these particular containers.

You outlaw every other container in the world that is now used to market produce, and that is one reason why in our conclusion we have said the principal reasons which we advance for repealing these laws are obsolescence and ambiguity, and I think this goes beyond ambiguity-I think this is a pretty flat legislative fiat, that you can't sell fruits and vegetables in anything but these specific containers.

That being true, you outlaw a vast, vast array of containers that are now in common use and accepted in common use.

Another thing is you get into the question of ambiguity: Right from the day this law was passed, everybody has treated this law as applying only to fresh fruits and vegetables.

Where is the word "fresh" in this act? What about frozen fruits and vegetables?

If you are going to put a strict interpretation on it in that regard, you outlaw all of the packages used in the supermarkets today in which frozen vegetables are sold.

Now, Mr. Cleveland and I took a look in the market here yesterday and we found frozen vegetables, asparagus, potatoes, peas, broccoli, beans, corn, onions, artichokes, squash, carrots, all sold in the supermarkets, all in packages which conform in this way with these acts. Every one of those packages was marked with a weight, ranging from 8 ounces to 12 ounces.

Now, I would think-maybe I am waving the riot flag here—but I would think there is a very real chance that a court would say that the legislative intent when this act was passed in 1916, when they never heard of freezing stuff, was that it applied only to fresh fruits and vegetables, but it doesn't say so.

It is still ambiguous in that regard and in the light of the recommendation of these Government departments that such a small percentage of the produce sold today is handled in these types of packages, it seems to me that vices, the faults greatly outweigh any advantage which there may be in retaining these two obsolete and ambiguous laws on the books.

I think that is our position, Mr. Chairman. Mr. Roush. In the event these two acts are repealed, how will it affect your industry? What will you do differently?

Mr. ATWOOD. I will let Mr. Cleveland answer that. He is our vice president, sales.

Mr. CLEVELAND. We were talking about some of these containers. We manufacture a 2-quart container which at the present time under this code is legal. Peaches, when they are quite expensive, they don't want to put them in a 2-quart container in Michigan, as an example, because we sell them in Michigan, among other placesthey prefer using a 17a-quart.

Now, they don't sell these or it isn't a quart and a half or 2 quartsit is count or weight, but nevertheless, as the price goes up, they want a little less size container, and a 12 is very popular.

We put it out originally as a 1/2. When we were called on thisand that is when our interest started—we changed the nomenclature. We still call it a 13h, but it is a 134 what we don't say quart—but it is very popular in Michigan as a container for peaches when the price of peaches is too high to put in a 2-quart container.

There is one other thing that will affect us very definitely. We don't at the present time make a climax basket. I am quite sure you are familiar with it. It is the rounded end basket that they put tomatoes and grapes in, and it has a wire handle on it, and then there was a way you could put the top on it, slipping it under the handle, and we are working on a climax basket that will benefit the consumer and will be less expensive than the climax basket, but we can't make it if we stick to the regulations in this law because if you read part of it, it has to have a 3-inch-thick bottom.

If you remember the old climax basket it did have a heavy bottom We could mold a 3-inch-thick bottom, but we would have to mold a 3-inch-thick side all of the way around it, and it would defeat the purpose of giving a satisfactory carrier in what is now climax baskets

That is the way it affects us. We want a climax basket, among other things, for mushrooms, and there is a need for this. We don': want to proliferate the sizes or containers because it is just as expensive for us to put a new item in the channels of distribution as it is to manufacture it. We don't want to proliferate the sizes but we would like to have a sized container that really meets the demand in the marketplace, and we think we have it, a i which we can't make and call that, and we think we would have it in a climax basket, which we can't make in accordance with this law with a 3-inch bottom.

I think perhaps the Department of Agriculture, they have been su cooperative so far, they might overlook the %-inch bottom. We haven't discussed it with them, but it would be in violation.

Mr. Roush. Mr. Anderson?
Mr. ANDERSON. No questions.
Mr. Roush. Mr. Roudebush?
Mr. ROUDEBUSH. No questions.
Mr. Roush. Mr. Vivian,

Mr. Vivian. I think a very pertinent comment on the bill is contained in the letter of Secretary Freeman. First, I would like to ask a question.

I see a list of States which are opposed to repeal, and the State of Washington is one, and I find in the printed remarks from your organization a statement that the fruitgrowing industry of the State of Washington feels that the act stifled improved methods of fruit packaging

Is that a disparity between the views of the fruitgrowing industry in Washington and officials contacted?

Mr. CLEVELAND. Sir, we also attach to our statement a letter from Mr. Martin A. Foster, secretary-manager of the Wenatchee Valley Traffic Association.

This letter from Mr. Foster to Senator Magnuson, if that is a conflict, that is what we based our statement on in the other, and that is the heart of the fruitgrowing area.

Mr. Vivian. In other words, you are saying there is a disparity between the opinions of the fruit association and the officials of the State who made the recommendation?

Mr. CLEVELAND. Yes, sir.

Mr. VIVIAN. Let me return to a part of the letter from Secretary Freeman to the Honorable Warren Magnuson, dated March 30, 1966, and the paragraph next to the end states that:

Although practically all of the containers regulated under these Acts are used as shipping containers and not as consumer packages, there are some, such as berry boxes, which are still used for marketing products to the consumer on a volume basis. While we recommend that these Acts be repealed, we believe that the interest of consumers should continue to be protected through the prohibi tion of unfair and deceptive packaging and labeling practices. Such prohibitions are contained in S. 985, the "Fair Packaging and Labeling Act," which, with certain amendments has been endorsed by the Administration. So that there will be no gaps in consumer protection, we recommend that S. 985 be amended to provide that the containers now regulated under the Standard Container Acta would not be freed from regulations by the repeal of these Acts but would, in that event become subject to the provisions of S. 985. Such an amendment is

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