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could be demonstrated by such procedures, which the Department of Agriculture might set up as "official" tests, but which would not be "standard" methods, that no antiseptic no matter how effective it might be in clinical use, could be labeled as an antiseptic.

It is not the intention of the Committee on Commerce, I am sure, to land its support to such absurd potentialities as lie in the present wording of paragraph (j) of section 402. The chaotic possibilities that are now in this paragraph could be eliminated entirely by changing the wording so that the antiseptics being regulated would be tested by the same method as used in the test applied to 1 to 80 dilution of phenol. It is not unreasonable to require that antiseptics should be equal to a 1 to 80 dilution of phenol in germicidal efficiency when tested by the same method. This is reasonable, fair, and scientific.

It is suggested that the substitute wording for paragraph (j) and paragraph (k), which has already been submitted, be used. The reason for this recommendation is that the substituted wordings are far more definite and scientific and more easily understood. In a law of this kind, as in all laws, vagueness is to be avoided. Definite wording of such clearness that all may read and understand alike is not only desirable, but absolutely necessary. The substituted wordings for paragraphs (j) and (k) suggested here accomplish this purpose completely. If any special paragraphs covering antiseptics are felt really necessary by the committee, it is strongly recommended that the substituted wordings presented here be used in place of paragraphs (j) and (k) as they now occur in section 402.

Mr. Syme.

STATEMENT OF SAMUEL A. SYME, DRIED FRUIT ASSOCIATION OF CALIFORNIA AND THE CALIFORNIA DRIED FRUIT EXPORT ASSOCIATION

Mr. SYME. Mr. Chairman, I represent the Dried Fruit Association of California and the California Dried Fruit Export Association. These organizations have in their membership individuals and organizations handling 95 percent of the dried fruit produced in the State of California. This represents 500,000 tons of dried fruit annually, coming from more than 2,000,000 tons of fresh fruit. I might say that we heartily endorse S. 5 in its general principles, and we are in favor of it, but we feel that the committee should make a distinction between fresh foods or natural foods and the so-called "manufactured" or "processed" foods. We feel that the bill, as drawn, is drawn primarily looking toward the manufactured foods. Dried fruits are merely fruits in their natural state, which have been dehydrated, usually by the action of the sun. They are subject to the same inconstancies that fresh fruits are subject to, the same changes in sugar or acid content, caused by climatic differences, temperature differences, and they are just as little subject to a definition of quality as is a fresh fruit.

Section 303, on pages 9 and 10, provides for the definitions and standards for food, but it ends up with the provision, as it stands at present, “Provided, That no standard of quality shall be established for any fresh natural food.”

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We would suggest that that proviso be amended to read

Provided, That no standard of quality shall be established for any fresh or dried fruits or vegetables.

66

Now, this morning Senator Austin was speaking of not wanting a definition in the act which would prohibit the defining of quality of maple sirup and he was afraid that the use of the term natural foods" would prevent that, because maple sirup might be held to be a natural food, as milk is.

We feel that the dried fruit is no more subject to a standard of quality than is the fresh fruit. You might take two peaches off of the same tree, one of them will go to the market as a fresh peach, and the other one may go to the drying yard and be dried. The only difference between the two when they reach the market is that the chemical reaction of one of them has been somewhat arrested by dehydration.

Senator COPELAND. Is it your view, Mr. Syme, that in the establishment of a standard of identity provision might be made against worms, and so forth?

Mr. SYME. Yes; but we are not bothering with the standard of identity at all, sir. We are not contesting that. It is just the definition of quality. But a peach is a peach, whether it is in dried state or whether it is in a fresh state. We do not believe that it is any more possible to define, from the standpoint of quality, a dried peach than it is a fresh peach. That does not deal with the standard of identity, Senator."

That and one other section in the act is all that I care to take up at this time. If I may. I would like to file a supplemental statement. Senator CLARK. That may be done.

Mr. SYME. On page 50, line 16, section 714 (d), (2):

A food, drug, or cosmetic intended for export shall not be deemed to be adulterated or misbranded under this act, (2) if it complies with the laws of the country to which it is intended for export.

Senator COPELAND. We put that in. you know, for your State.

Mr. SYME. Yes; I realize the discussion we had on that last year. We would just like, Senator, to have that put the other way around and to have it read: "Provided it does not violate the law of the country to which it is exported ", as the present law has practically the same provision, and the decisions of the courts on the present law are built upon it, and those decisions would be, to a large extent, worthless the way the law is written.

(Statement referred to is as follows:)

BRIEF ON BEHALF OF DRIED FRUIT ASSOCIATION OF CALIFORNIA IN RE S. 5 The Dried Fruit Association of California desires to place on record the views of the association with respect to S. 5, introduced by the Honorable Royal S. Copeland and intended to supplant the present Food and Drug Act. The Dried Fruit Association of California has in its membership individuals and organizations handling more than 95 percent of the State's total output of dried fruits and more than 90 percent of the dried fruits prepared in the United States. They handle something more than 2,000,000 tons of fresh fruits annually, which produces 500,000 tons of the fruit in its dried form. The production of this commodity represents the labors, and in many cases the sole support, of approximately 125,000 grower families on the Pacific coast.

This industry is heartily in accord with the legislative and regulatory activities of the Government, which will and do promote public welfare, protect

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public health, and prevent fraud in business, and they feel that the present proposed legislation is far superior to any which has been heretofore introduced, and on the whole they give to S. 5 their hearty support. They feel, however, that the bill as at present drawn does not in all instances distinguish clearly between what may be classed raw foods which are manufactured and prepared "ready to serve ". Into the first classification fall fruits, vegetables, and staples purchased in their raw state and prepared in the home by the housewife. In the second classification fall those foods upon which the service of preparation is usually performed by the manufacturer, processor, fabricator, or packer. In purchasing these foods the housewife is also purchasing service which she must accept as having been properly performed and upon which she must rely. The needs and the problems of these two branches of the food industry are entirely different and legislation affecting one cannot necessarily be applied to the other.

A reading of the proposed S. 5 indicates that its philosophy is developed largely from consideration of manufactured foods. We do not believe that many of its provisions are intended to apply to dried fruits and it is entirely possible that the proviso of section 303 would exempt dried fruits from the necessity of being defined as to quality; but we believe that an amendment to this section is desirable for clarity.

At the hearings held before the subcommittee. Senator Austin of Vermont appeared on behalf of the maple-sugar and maple-sirup industries of his State with a request that this proviso be so amended as to exclude these products from its operation. Though maple sugar and maple sirup must, to some extent, be processed, he was afraid that in spite of this processing it might be called a natural food such as milk, which though it may pass through the process of pasteurization may also be classed as a natural food. While the process through which fruits pass in order to become dehydrated or "dried" no more deprives them of their natural characteristics than do the processes through which maple sap and milk are put, we feel that greater clarity is desirable on this point.

Fruits are “dried" by the simple process of removing a portion of their moisture content primarily through the natural action of the sun. The product is " dried " or dehydrated in practically all instances by the grower himself and the drying apparatus runs from the drying racks of the small grower to the more elaborate set-up of the larger operators. The result of this process is a commodity, the chemical reaction of which has been very largely but not entirely arrested. The product is then in a form fit for human consumption and very palatable in its then condition but it is not in the form in which it is usually consumed.

The product in its dried, semiperishable state is taken from the grower by the packers and thoroughly cleansed, sorted, packed, and stored to await shipment. It is to be remember that the product is still in its raw state. The same forces which attack the fruit before dehydration may attack it now. While chemical reaction has been arrested to some extent it has not been completely stopped. All the variations that are present in the fruit in its fresh form are still there. Different districts on the Pacific coast produce fruits of the same variety but of widely varying characteristics, such as sugar and acid content, skin and flesh texture, color and external skin blemish, etc. This does not mean the wholesomeness of the product is necessarily variable, but rather that on the basis of limitation of the sugar content, color, and other inherent characteristics there is a variation which does not lend itself to absolute control. Dried fruits are subject to precisely the same variations of quality as fresh fruits and for this reason we feel that they are entitled to the same treatment under the law. They are condensed, semiperishable raw food of great economy to the consumer and do not lend themselves to rigid definitions of quality any more than do the fresh fruits from which they were derived. In canning operations as to all fruit, the canner is able to exercise wide selectivity in the purchase of his raw materials. He can specify that only no. 1 (practically perfect) fruit shall be delivered. He is in a position to determine precisely the class of merchandise in which he will operate and in most instances the fruit is handled entirely by hand, even the number of pieces going into the can being carefully controlled. In performing these functions the canner is doing precisely what the housewife does for herself when she purchases and prepares for herself the fruit in its less expensive dried form. After the grower has satisfied the demands for fresh and canned fruit the remainder of his crop is put out to dry and is marketed in its dried

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form, so that some of the fruit may go to the market in its fresh form and is admittedly not subject to a definition of quality; whereas other fruits from the same orchard and the same tree goes to the market in its dried form and yet might be considered subject to a definition of quality under the act as it is at present drawn.

Probably all of us have walked into a grocery store and reached into a box of dried fruits of some kind and eaten a piece of such fruit. Let us say, for example, that it was a box of dried peaches. This peach is palatable, wholesome, and nutritious but is not in the form in which it is usually consumed. We may even purchase a pound of dried peaches and at the same time purchase a bag of fresh peaches. On our way home we may have reached into the bag of fresh peaches and eaten one of those. That is admittedly not subject to a definition of quality though it may have come from the same tree that bore the peaches which have been dried and which we are taking home for final preparation. This preparation would involve a rewashing and cooking of the fruit in our own kitchen, a preparation which would have been performed by the manufacturer had the peach been canned.

Fruits may be marketed in their fresh, dried, or canned forms. In the latter instance the food is "ready to serve" and the housewife depends upon the services which have been performed for her. In the first two forms the fruit may be consumed in its raw state or it may be cooked in some form by the housewife, in either of which case the consumer has the power of selectivity and personally performs any services required.

We feel that the act may be clarified and made more practical by amending the proviso of section 303, page 10, line 4, to read as follows:

"Provided, That no standard of quality shall be established for any fresh or dried fruits or vegetables."

Such a proviso will remove the possibility of the inclusion of such substances as maple sugar, maple syrup, and milk from its operation and will clearly bring into the proviso dried fruits which are no more subject to a definition of quality than is the fresh variety.

At the hearing on Saturday Dr. Harrison objected to this amendment to the proviso of section 303 on the ground that it would put dried fruits in a position where they would not be regulated at all by the Food and Drug Administration, and he cited as an example the fact that fresh fruits are at present controlled by the Bureau of Agricultural Economics. It is his contention that the regulation of canned fruits is necessary because the purchaser cannot see what is in the can, This is, of course, directly in line with the argument which we have been making, namely, that the canner has a power of selectivity and performs a service upon which the housewife must depend. He further contends that while the public can observe the quality of fresh fruits, they have not the ability to observe the quality of dried fruits. Dried fruits have been on the market and extensively used for many years. Except for the removal of a portion of their moisture content, they do not differ from the fruit in its fresh state and are just as easily judged. The exclusion of this commodity from a definition of quality does not remove it from regulation, as the Secretary still has the power to regulate by tolerance the amount of sulphur dioxide which could be used in the preservation of the product. The exclusion from the definition of quality does not exclude the products from the standard of identity. The proviso of section 303 as it stands at present does not exclude even fresh fruits from the standard of identity.

Of the 500.000 tons of dried fruit produced in California annually approximately 50 percent thereof are shipped in world trade. The export section of the present Food and Drug Act (34 Stat. 76S) provides that: No article shall

be deemed misbranded or adulterated within the provisions of said sections when intended for export to any foreign country and prepared or packed according to the specifications and directions of the foreign purchaser when no substance is used in the preparation or packing thereof in conflict with the laws of the foreign country to which such article is intended to be shipped."

This section has been construed and applied by the courts in many instances and in so doing the courts have held the burden of proof to rest upon the Government to prove violation of the laws of the foreign country. We feel that section 714 (d) (2) would be more in accordance with the existing law and preserve the decisions under the existing law if it were amended to read: "Does not violate the laws of the country to which it is intended for export." At the hearing of the subcommittee on this bill Senator Copeland suggested that the present section was drafted last year at the request of this association.

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We would like to suggest to the Senator that the change made in the export section of S. 2800 was the striking out of the provision that foods intended for export were required to comply with a definition of quality and standard of identity set up in accordance with the act for domestic foods. Our sole purpose in suggesting this present amendment is to preserve the existing court decisions on this point and not word the act in such a way as the burden of proof in compliance might be placed upon the shipper rather than the burden of proof in violation being placed upon the Governinent.

In closing we wish to express our appreciation for the work of the subcommittee in conducting these hearings and to assure the committee of our hearty cooperation in the end which they are seeking to accomplish. Respectfully submitted.

SAMUEL A. SYME Representative Dried Fruit Association of California.

Senator CLARK. Mr. Cosgrove.

STATEMENT OF EDWARD B. COSGROVE, REPRESENTING THE NATIONAL CANNERS' ASSOCIATION

Mr. COSGROVE. Mr. Chairman and Senator Copeland, my name is Edward B. Cosgrove, and I am representing the National Canners' Association. The National Canners' Association has a membership of some 2,000 members, and these members pack approximately 70 percent of all the canned foods that are packed in the United States exclusive of milk. As we find the third print of S. 5, the committee print, we are in almost entire accord with it. We believe that it marks a very definite step in food legislation, and we heartily endorse it.

There is a little ambiguity in the language of section 704, concerning which we would like to file a statement during the coming week, or prior to the closing of the record.

Senator CLARK. That may be done.

Mr. COSGROVE. We should also like to file a little more complete statement of the reasons for our endorsing this bill.

If you will turn to page 43, section 711, subparagraph (c), we have one very minor amendment we would like to suggest. During the past our members have sometimes had the difficulties of obtaining samples of food which had been seized. We have been put to the necessity of hiring attorneys in order to get these samples back at different times, and we should like to add to the language in line 24 following the word "obtain" the following line "by attorney or agent at his option." That would permit a canner in case of seizure to obtain possession of his own goods. Other than that, sir, we heartily endorse S. 5 and urge its speedy passage. (Statement referred to is as follows:)

SUPPLEMENTAL STATEMENT ON S. 5 SUBMITTED BY E. B. COSGRAVE, CHAIRMAN OF THE LEGISLATIVE COMMITTEE, NATIONAL CANNERS ASSOCIATION The National Canners Association includes in its membership individuals and firms that produce a large proportion of the output of the 2,500 concerns egaged in the canning business. It is fully representative of the industry on the basis of both character of product and geographical distribution of establish:nents.

The National Canners Association endorses the revision of the Food and Drugs Act as proposed in committee print no. 3 of S. 5, first, because it will strengthen the food laws. Since the passage of the original act in 1906 the 120089-35--14