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Mr. FRASER. Have every pint and quart stamped with the name of the packer, every pint of berries.

Senator COPELAND. Well, now, in your place, you go to some local man who makes your boxes, do you?

Mr. FRASER. Oh, no; I may get them in Boston. I may get them in Brooklyn; or I may get them in Chicago. He makes quantities. In the case of the carton, I furnish the plate carrying my marks and he runs them through. I have probably a year or two's supply on hand for different sized apples; but what has happened in the last 2 years? We are now using open crates which don't require any labeling, and we throw them on a truck and let them go. We are avoiding packing and the package; I am, because I find people in New York that will pay me up to $3 a bushel for them in that way, and then sell the package for 10 cents, with no marks on them at all.

Senator COPELAND. Now, under this as it is written, would all these celery and onion growers be required to have this label on the package?

Mr. FRASER. It would depend on how and where they were shipped. You take celery. It may be shipped rough and unwashed to storage: might live in Brooklyn or in New York. If shipped over into Jersey City he would have to mark. Of course, if he was shipping in New York and he stayed in the State, it would not apply. If he was in Camden and he shipped to Philadelphia, it would apply. If he was in Michigan and he shipped to Chicago, it would apply. If he shipped to Detroit, it would not. You are in no end of complexity. If you do not leave this thing where it now lies, where it has grown up in the Bureau of Agricultural Economics and in the States, you will impair 30 years' work, and with no gain; but rather to your detriment from a stand point of public health.

Senator COPELAND. How is the Bureau of Agricultural Economics handling this now?

Mr. FRASER. I was just going to come to that. The fresh fruit and vegetable industry is probably standardized to a greater degree than any other industry comparable in extent and varieties. The Bureau of Agricultural Economics has long since set up grades and specifications for nearly all fruits and vegetables, and under which its official inspection service operates, or under mandatory State grades, according to the facts. For instance, on the commodity apples, here is the publication of the New York State grades, here is Virginia's, here is Washington, here is California, here is Oregon, on this one commodity. Now, in addition, the Federal Government, through the Bureau of Agricultural Economics, has drawn up standards and grades under which the industry now functions. They are optional, but any person marking their commodity under that grade immediately goes under their jurisdiction, and they are using those grades in the Perishable Agricultural Commodities Act, which governs the decisions in regard to business transactions and their violations. The wholesale distributors of the fresh fruit and vegetable industry is under Federal license. It is under Federal jurisdiction under the Perishable Agricultural Commodities Act. In other words, if one licensed buyer or shipper believes that the standard trade terms have been violated all he has to do is to appeal to the Department of Agriculture. They will issue a finding as to which party is in error, based on these grades, and these grades now function.

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in commerce, both domestic and foreign. Now you would upset the business which has been developed for 20 years for no good purpose. rather to your detriment.

Senator COPELAND. Well, certainly the question of health is not involved, is it?

Mr. FRASER. Not at all. There is no question of health. Here are the United States Standards just for apples. Now we have got 200 fruits and vegetables in commerce, and the Bureau of Agricultural Economics is developing standards and grades as occassion requires changing them. They meet with the trade, and they draw them up, and then the different States use these in many cases to draw their own State laws. Here, for instance, is the apple grading. These are the terms under which we operate. Now, if the consumer wants protection in regard to grades, all they have got to do is to study these and read and buy accordingly. We cannot put anything better before them than to give them all the marks. Now, what is happening, of course, in most stores, is that the commodity is taken out of its package for display, and then it lies before the people, just as they lie here, and you go into the store and you want "6 of those, and 5 of that ", and as it happens, I spent 6 months studying the movement of fresh fruits and vegetables in Boston. In one store we had 29 cash registers running in the different departments. The average sale was 35 cents for fruits and 40 cents for vegetables, made up of 4 or 5 items, a nickel's worth of squash, a nickel's worth of turnips, a few apples, and so on. The average sale was 35 cents: so your question of saving the consumer is just utter bunk. He buys half a cabbage, a piece of squash, and more and more than ever the vending is to small purchasers.

Senator OVERTON. Mr. Fraser, is this the only place in the bill where you want to except fruits and vegetables!

Mr. FRASER. No, sir; I have got a number of them when I come to them.

Senator OVERTON. A number!

Mr. FRASER. Yes; but I am giving you the reasons why we should come out of that.

Senator OVERTON. I thought you had made out a very good case on that.

Senator COPELAND. What he is afraid, Mr. Fraser, is you might filibuster your own bill.

Mr. FRASER. Oh, no, no. I am hastening to save your time. The apple industry has not only the progressive grades and specifications of the Bureau of Agricultural Economics, which would become mandatory when one elects to pack and mark thereunder, but in addıtion all of the leading apple producing States have mandatory laws governing grades, branding, or labeling, and these laws provide among other things for the name and address of the grower or packer, variety, grade. size, and so forth.

Apple packages in the so-called "barrel States", are, in the majority of cases, not labeled but are stenciled or stamped. In the box States or the Pacific Coast States, they are generally labeled. These grade specifications, laws and rules have been developed through a series of years. They should be left where they now through a series of years. They should be left where they now are.

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with the Bureau of Agricultural Economics and the States, rather than be complicated with the Food and Drug Administration.

Now, then, in regard to standardization of packages, which also comes under jurisdiction of 6 and 7, if the container is so made, in section 7, paragraph (a). I want to draw your attention to the laws which you have already passed. A standard full barrel law was passed by Congress, approved August 3, 1912. This was followed by a law fixing the standard barrel for fruits and vegetables, approved March 4, 1915. These laws specify length of stave, diameter of head, circumference of barrel, and cubic capacity. Following this, the Standard Container Act was enacted, approved, August 31, 1916. This law prescribes specifications and makes it unlawful to manufacture or sell filled or unfilled, other types. Still later came the Standard Container Act of 1928, approved May 21, 1928, and this law specifies cubic capacity and makes it unlawful to manufacture or to sell other types, filled or unfilled, or to make deceptive packages. These laws apply to barrels, round bottom and tub, bushel and other size baskets, hampers, and climax and splint boxes of all sizes; tills, including quarts and pints, and provide for their marking as to capacity or volume, and penalties if not properly marked when used. The Barrel Act and the Container Act of 1928 are weightsand-measures laws, under the Bureau of Standards, and apply to intrastate and interstate commerce; and I have the ruling of the Solicitor of the Department in regard to that, with me. The Container Act of 1928 provides that specifications for any package covered by the law must be submitted to the Department of Agriculture before manufacture. The administration of certification of dimensions essential to comply with the law, now rests with the Department, and in addition, there are many States statutes. As to the box, the Pacific Coast States, where the box is primarily used, have standardized it by State law and regulations. Other States, like Virginia and New York, have done likewise. Standards of fill or the marking of the quantity of contents are also provided by leading producing States.

In view of the foregoing, it is clear that the proposed bill would set up dual, duplicating, and possibly conflicting control over the factors already covered. These various standards have been developed through a series of years by both Federal and State Governments. It is a specialized field in which constant progress has been made. We believe the whole question of standards, including grades, marks, and containers, should be left with the agencies through which they have been developed. The Bureau of Agricultural Economics, the Bureau of Standards, and the States. Nothing is to be gained by covering the same factors in whole or in part in a multiplicity of statutes, and administered in whole or in part by different bureaus with inevitable conflict and overlapping regulations.

Now, under Misbranded food, section 7, insert after the word "food", in line 20, the words "except fresh fruits and vegetables making the line read: "Section 7. A food, except fresh fruits and vegetables, shall be deemed to be misbranded."

We have discussed in part the extent to which the standardization of grades, marks, and packages has proceeded in the fresh fruit and

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vegetable field and will discuss it further under section 11. Paragraph (a), (1), (2) are already primarily covered by present standardization laws. These present standardization laws prevent the use of misleading fresh fruit and vegetable containers. Standards of fill in the fresh fruit and vegetable field are already sufficiently established by standard package laws, Federal and State. Definitions of identity, standards of quality, and mandatory labeling, as provided in (d) and (e), should not be lodged with the Food and Drugs Administration, since they are already largely covered by the Bureau of Plant Industry in regard to variety identity, State statutes, and the Bureau of Agricultural Economics in regard to standards of quality, grades, labeling, and so forth.

Now, as to paragraphs (b) and (c)

Senator COPELAND. (b) and (c) of what section?

Mr. FRASER. (b) and (c) of page 9. It is inconceivable to us that you should have thought of fresh fruits and vegetables. I cannot see why you should have thought an apple would ever be offered as a peach or a pear, as a potato or a cabbage, or under any other name than what they are. Neither can they, nor will they be offered as an imitation. The same principle applies to all fresh fruits and vegetables. I cannot see how that could apply.

Paragraph (f) could not have been intended to apply to fresh fruits and vegetables in their natural state. It should be made clear, though, by taking them entirely out of section 7.

Fresh fruits and vegetables are already identified not by the Food and Drug Administration, but by long-term usage, such as apples, pears, peaches, prunes, potatoes, etc. Varieties have been, and are identified by the American Pomological Society, in the case of fruit, and the United States Bureau of Plant Industry. It should hardly be required that these names be stamped on packages merely because a definition of identity had not been established by regulation of Food and Drugs.

Second, it would be clearly impossible and prohibitive to analyze and label each package of apples, pears, peaches, etc., with the name of each ingredient thereof, "in order of predominance by weight." I cannot see how that can apply.

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Section 6, paragraph (g) apparently is intended to apply to manufactured or processed foods. It should not be made applicable even by implication to fresh fruits and vegetables in their natural state. Section 10, "Tolerances." This deals with added poisons, and added deleterious substances, with no provision for constituent poisons and constituent deleterious substances. Section 10, as now written, goes beyond the present law. There is no provision in the present law for tolerances. The Secretary must prove the deleterious substance is detrimental to health.

The procedure for and effect of fixing these tolerances is provided in section 22, paragraph (a). (b), (d), (f), and (h), and are open to serious objection. It will be noted that under section 22 (b) and (d), the secretary is to be assisted by an advisory committee on public health of five members, and three members of the committee must approve any proposed regulation, which includes the fixing of tolerances. If three members agree with the secretary on a tolerance, the secretary promulgates it, and under paragraph (h),

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the secretary's findings of fact in arriving at such a tolerance "shall be conclusive if in accordance with law." Our objection does not lie to the provisions for an advisory committee consisting of five members of "distinguished scientific attainment ", nor to the secretary, but it does lie to making the findings of fact of the secretary, and in effect the findings of fact of a majority of the committee conclusive, as provided in paragraph (h).

Senator COPELAND. Now, Mr. Fraser, when you come to section 10, you are entering a different field. These other matters are purely economic, but you are coming now to a point where an added poisonous or deleterious substance would impair the health.

Mr. FRASER. Right.

Senator COPELAND. So you will have to have some strong argument to make any change in this particular section.

Mr. FRASER. I cannot conceive how you could make findings of fact conclusive on a scientific question.

Senator COPELAND. Well, you are speaking about section 22.

Mr. FRASER. If you are going to prepare a tolerance on a finding of fact by the secretary and the committee, and it is penal

Senator COPELAND. No; I am speaking now of section 10, not 22— section 10.

Mr. FRASER. Yes: all right. You are fixing a tolerance for the industry with which the industry must comply; and remember, as we said before, the problem of growing fruit is a bigger fight today than ever with the bugs; and there are certain things which are either going to spray or surrender.

Senator COPELAND. Well, the bill makes provision for that in line 10.

Mr. FRASER. Right.

Senator COPELAND. "Taking into account the extent to which the use of such substance is required in the production of such food."

Mr. FRASER. Right; but we feel that their findings should only be prima facie. They should be subject to review by a court of competent jurisdiction.

Senator COPELAND. Well, now this section 10, you wouldn't be so distressed about if section 22 omitted the last sentence of subsection (h)?

Mr. FRASER. That is paragraph (h)?

Senator COPELAND. Paragraph (h), page 37.

Mr. FRASER. If you put in there "in formulating regulations, findings shall be prima facie in court ", which they are now. That is where we are all right, but I will have something more on section 23. I cannot see how you can propose to make a finding conclusive. I don't know whether I ought to take the time of the committee, but we have had eminent chemists who had to revise their opinions very quickly after they made a deduction on what they regarded as sound facts. The facts exist, but they suddenly had to move on their findings. We are moving today; we are not dead. We are not static. Senator COPELAND. Well, the whole argument, however, as regards section 23, from your standpoint, would disappear if section (h) were modified?

Mr. FRASER. Well, I want some changes in section 23. I will give you the proposal when I come to it.