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Mr. GRIGG. Yes.

The CHAIRMAN. All right. Is there anything else that you would like to add?

Mr. GRIGGS. There is nothing more in this prepared statement that would be different from the others that have been presented.

The CHAIRMAN. Are there any further suggestions that you would like to make?

Mr. GRIGGS. I think not.

The CHAIRMAN. What size farm have you?

Mr. GRIGGS. I have a farm of 110 acres. I have about 60 dairy cattle on the farm, of which 40 are milking.

The CHAIRMAN. Are the dairy people of Vermont more or less agreed on the present method of handling the milk products-is there very much opposition?

Mr. GRIGGS. I think not, so far as we know.

The CHAIRMAN. Do you wish to say anything else, sir? If not, I want to give you assurance that your statement as written will be put in the record in full.

Mr. GRIGGS. I am a little concerned about the proposal that has been presented of junking our present promotion program in favor of a Federal program as it applies to the Federal orders, believing that the tax approach that Vermont has, plus a voluntary approach, if followed through in the other States, in that way would raise as much money for promotion work as if it was incorporated in the Federal orders.

The CHAIRMAN. When you say "other States," you mean States in the area?

Mr. GRIGGS. States in the New England area.

The CHAIRMAN. In regard to the enforcement orders, do you have in mind the orders or the enforcement of the provisions in the ordersis that what you are driving at or are you driving at the use of milk for other purposes, either the milk itself or the products, and so forth? Mr. GRIGGS. Mr. Chairman, I do not believe I quite understood your question.

The CHAIRMAN. You spoke of enforcing orders or enforcing, I guess, the quality of the milk. Is that what you had in mind?

Mr. GRIGGS. The present orders as they are operated are satisfactory

to me.

The CHAIRMAN. Then it is in the use of the product that you are complaining of?

Mr. GRIGGS. Substitute products that you are asking about?

The CHAIRMAN. Yes. In other words, the use of other products. Mr. GRIGGS. The use of the way that advertising is done for oleomargarine. We think that there are some unfair practices used in merchandising by companies that distribute oleomargarine.

The CHAIRMAN. Can you be specific in any instance as to what you have, that you think ought to be corrected?

Mr. GRIGGS. We believe one thing that exists that should not. In the dairy cases in most grocery stores oleomargarine, for instance, is carried in those, and the label on the outside is "Dairy products." We think that should not be.

The CHAIRMAN. If it is so labeled, of course, that, in my opinion, is not correct. As I remember now, I am just giving maybe a cornfield

opinion, as we lawyers say, but I think that would be a violation of the law. All you want is that that be enforced?

Mr. GRIGGS. We would like to see oleomargarine taken out of the dairy cases and be sold on its merits and not to ride along on the real product.

The CHAIRMAN. As I remember, when the oleomargarine law was passed there was some provision to make that distinction that you are now talking about. If that is violated, I do not believe there would be any difficulty in making the handlers of it conform to the law. Are you suggesting new laws or the enforcement of the present laws? Mr. GRIGGS. I am suggesting that maybe we need more personnel to enforce it.

The CHAIRMAN. In other words, to enforce the laws on the statute books as to oleomargarine?

Mr. GRIGGS. Yes.

The CHAIRMAN. I remember, Senator Holland I am sure will remember also, and Senator Aiken, we have in the law certain provisions to make certain that oleomargarine is sold as such and not to be confued or advertised as being a dairy product. That is my recollection.

Senator AIKEN. I think the intent of Congress was that it would be a violation of the law, but I do not know what the interpretation of the Federal Trade Commission or the Department of Justice would be on that. Congress never intended that oleomargarine should be sold in any way as a dairy product; in other words, putting oleomargarine in the same case with butter or in the same cold-storage compartment, labeling it "Dairy products" would, I think, under the intent of Congress, be a violation of the law.

Sometimes the departments do not interpret the law the way the Congress thinks of it when it is passing it.

Did you have also some reference to the growing use of coconut oil in ice cream which is now permissible in 11 States?

Mr. GRIGGS. Yes, I did. I doublt if that is a problem at the moment in New England, but it could be.

The CHAIRMAN. How would you prevent that? If the people who handle it can use it, it is not against existing law.

Mr. GRIGGS. I believe that the only thing that we ask is that when the sale is permitted in New England, if it is, that it be labeled and sold as the product that it is. I do not think that we ask for prohibi

tion.

The CHAIRMAN. I do not know of any provisions with respect to coconut oil. That is well worth looking into because I think it is wrong, it is immoral to use it and to label it as a dairy product when it is not.

Senator AIKEN. May I add that the necessity for strictly controlling this is due to the fact that there is no known test which will tell whether the fat in the ice cream comes from a cow or from a coconut. There is no known test.

The CHAIRMAN. That is a sad situation.

Senator AIKEN. It certainly is; that is, if it ever gets started. Senator HOLLAND. So far as I am concerned, I think that the taste test would enable me to tell which was which. If I understand this withe wants the spirit of the labeling law now existing which requires the package of oleo to be labeled clearly, to be so labeled, is that it, so that it clearly defines it? You want the law expanded, if it does not

ness,

already provide it, to mean that the dairy product and the oleo cannot be so mingled together in their presentation to the public for sale that oleomargarine could be consumed by any customer as being a dairy product?

Mr. GRIGGS. Yes, sir, that is right.

Senator HOLLAND. Likewise, as to the coconut ice cream, you are not questioning its healthful quality-you just do not want it to be sold as a dairy product at all?

Mr. GRIGGS. That is right.

Senator HOLLAND. I think that these suggestions are good. I hope that the counsel for the committee will place in the record at this point an opinion as to the adequacy of the present provisions of the law going beyond mere labeling to effect the two purposes which he has in mind.

(The information to be supplied is as follows:)

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
FOOD AND DRUG ADMINISTRATION,
Washington 25, D. C., December 14, 1955.

Mr. HARKER T. STANTON,

Counsel, Committee on Agriculture and Forestry,

United States Senate.

DEAR MR. STANTON: In response to your letter of December 7, we are pleased to supply the information requested by Senator Holland concerning the adequacy of present laws to prevent oleomargarine and ice cream made with coconut oil from being passed off as dairy products.

Oleomargarine: Section 407, enacted in 1950 as an amendment to the Federal Food, Drug, and Cosmetic Act, sets forth specific requirements for the marketing of colored oleomargarine both in package form and as served in public eating places.

We believe that the requirements of this section of the statute are adequate to result in consumers being informed that the colored oleomargarine offered in either of these ways is not a dairy product. The labeling of packages of uncolored oleomargarine is dealt with under the general provisions of the Federal Food, Drug, and Cosmetic Act and the standard of identity for oleomargarine as promulgated thereunder. These requirements call for clear-cut labeling of the article as "Oleomargarine" or "Margarine."

We do not believe that the terms of this law will prevent the retail sale of packages of colored margarine, which themselves are properly labeled, from display cases containing dairy products. No doubt, however, the Federal Trade Commission will comment on this point in the light of the amendment to section 15 of the Federal Trade Commission Act which was enacted with section 407 of the Federal Food, Drug, and Cosmetic Act in 1950 (Public Law 459, 81st Cong.).

Ice cream: No formal standard of identity for ice cream has yet been established under the terms of the Federal Food, Drug, and Cosmetic Act, although such a standard is currently under consideration following a public hearing which was held some time ago to take testimony on which to base such a standard. This testimony clearly confirmed the position which has been held here for many years that ice cream is a dairy product and not one made with coconut oil or other nonmilk fats. For many years we advised inquirers that we regarded a product simulating ice cream, but made with fats other than milk fat, to be an article illegal for shipment in interstate commerce on the grounds that ice cream was well recognized as a dairy product and that the substitution of vegetable fats for milk fat in that article would constitute adulteration under section 402 (b) of the Federal Food, Drug, and Cosmetic Act. See the policy statement of April 13, 1950.

Subsequently, as a result of the Supreme Court decision in the so-called imitation Jam case, we concluded that we would no longer be able to maintain that position with or without a formal standard under the act. At that time we encountered an interstate shipment of a product made in imitation or semblance of ice cream and proceeded agains this on the grounds that it was an imitation ice cream and failed to be so labeled as called for by section 403 (c) of the act.

This action was contested by the owner of the goods and the Federal District Court for the Northern District of New York upheld the Government's allegations. To clarify the matter, we then issued the statement of policy as attached in the Federal Register of April 22, 1955.

Methods of analysis are available to detect the presence of any significant amount of coconut oil in a product which simulates ice cream and the policy of requiring the Imitation Ice Cream legend is believed to be satisfactory to inform prospective purchasers of the nature of the coconut oil product where the article is sold in consumer-sized packages, properly labeled. We can, however, visualize difficulties where the vegetable fat product is sold in bulk packages for resale at soda fountains, since this would offer substantial opportunity for misrepresentation of the article as "true" ice cream.

The Federal Filled Milk Act, which we enforce, prohibits interstate and foreign commerce in most mixtures of dairy products with fats other than milk fat, which are in imitation or semblance of milk or cream. This law, however, does not cover products which are in imitation or semblance of ice cream. We hope this supplies the information desired, but if you need further details, do not hesitate to let us know.

Sincerely yours,

GEO. P. LARRICK,

Commissioner of Food and Drugs.

[Published in Federal Register April 22, 1955; 20 F. R. 2687]

TITLE 21-FOOD AND DRUGS

CHAPTER I-FOOD AND DRUG ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

PART 3-STATEMENTS OF GENERAL POLICY OR INTERPRETATION

Use of Vegetable Fat in Products Which Are Imitations of Ice Cream Under the authority vested in the Secretary of Health, Education, and Welfare by the provisions of the Federal Food, Drug, and Cosmetic Act (sec. 701, 52 Stat. 1055; 21 U. S. C. 371) and delegated to the Commissioner of Food and Drugs by the Secretary (20 F. R. 1996), and pursuant to the provisions of the Administrative Procedure Act (sec. 3, 60 Stat. 237, 238; 5 U. S. C. 1002), the statement of interpretation contained in § 3.18 Use of vegetable fat in ice cream, published in the FEDERAL REGISTER April 13, 1950 (15 F. R. 2082) is hereby revoked, and the following statement of interpretation is hereby issued:

§ 3.39 Use of vegetable fat in products which are imitations of ice cream. There is currently being marketed in interstate commerce a frozen product made in semblance of ice cream, but containing vegetable fats in complete or partial substitution for milk fat. In some cases the product is marketed under a fanciful designation. Such a product is now regarded as an imitation of ice cream, and thus amenable to the provision of the Federal Food, Drug, and Cosmetic Act requiring the label to bear the name "Imitation Ice Cream," with all these words in type of uniform size and prominence, regardless of whether a fanciful designation is used.

(Sec. 701, 52 Stat. 1055; 21 U. S. C. 371. Interprets or applies secs. 402, 403; 52 Stat. 1047; 21 U. S. C. 342, 343

Dated: April 18, 1955.

GEO. P. LARRICK, Commissioner of Food and Drugs.

[F. R. Doc. 55-3298; Filed, Apr. 21, 1955; 8: 47 a. m.]

[Published in Federal Register April 13, 1950; 15 F. R. 2082]
TITLE 21-FOOD AND DRUGS

CHAPTER I-FOOD AND DRUG ADMINISTRATION, FEDERAL SECURITY AGENCY

PART 3-STATEMENTS OF GENERAL POLICY OR INTERPRETATION

Use of Vegetable Fat in Ice Cream

Pursuant to section 3 of the Administrative Procedure Act (60 Stat. 237, 238, 5 U. S. C. 1002), the following statement of interpretation is issued:

§3.18 Use of vegetable fat in ice cream. The Federal Security Agency has received a number of inquiries regarding proposals to market in interstate commerce a frozen product made in semblance of ice cream, but containing vegetable

fats in complete or partial substitution for milk fat. It has been stated that the product is being currently manufactured in several States for distribution wholly within the borders of the State in which it is made.

This Agency regards products of this type, in which any vegetable fat is used as an ingredient, as adulterated within the meaning of the Federal Food, Drug, and Cosmetic Act, and therefore subject to action under the law.

(Sec. 701, 52 Stat. 1055; 21 U. S. C. 371. Interprets or applies Sec. 402, 52 Stat. 1046; 21 U. S. C. 342)

Dated: April 6, 1950.

OSCAR R. EWING, Administrator.

[F. R. Doc. 50-3123; Filed, Apr. 12, 1950; 8:47 a. m.]

HARKER T. STANTON, Esq.,

FEDERAL TRADE COMMISSION, Washington 25, December 16, 1955.

Counsel, Committee on Agriculture and Forestry,

United States Senate, Washington, D. C.

DEAR MR. STANTON: In your letter of December 9, 1955, you asked to be advised whether present laws are adequate to prevent oleomargarine and ice cream made with coconut oil from being sold as a dairy product. I am giving you herewith a statement concerning the jurisdiction this agency has under existing law with respect to the question presented.

Section 5 (a) (1) of the Federal Trade Commission Act (66 Stat. 632; 15 U. S. C. 45 (a) (1) declares that "Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce" are unlawful. Section 5 (a) (6) of the act (66 Stat. 633; 15 U. S. C. 45 (a) (6) empowers and directs the Commission to prevent anyone from using unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce. Section 5 (b) of the act (52 Stat. 113; 15 U. S. C. 45 (b)) provides that if the Commission has reason to believe that any one "has been or is using any unfair method of competition or unfair or deceptive act or practice in commerce, and if it shall appear to the Commission that a proceeding by it in respect thereof would be to the interest of the public, * * *" the Commission shall issue its complaint.

Section 12 (a) of the act (52 Stat. 114-115; 15 U. S. C. 52 (a)) makes it unlawful for anyone "to disseminate, or cause to be disseminated, any false advertisement (1) by United States mails, or in commerce by any means for the purpose of inducing, or which is likely to induce, directly or indirectly the purchase of food, drugs, devices, or cosmetics; or (2) by any means for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase in commerce of food, drugs, devices, or cosmetics." Section (12) (b) then declares that "The dissemination or the causing to be disseminated of any false advertisement within the provision of subsection (a) of this section shall be an unfair or deceptive act or practice in commerce within the meaning of section 5" of the Federal Trade Commission Act.

Section 15 (a) (1) of the act (52 Stat. 116; 15 U. S. C. 55 (a) (1)) provides that for the purpose of section 12 "the term 'false advertisement' means an advertisement, other than labeling, which is misleading in a material respect; and in determining whether any advertisement is misleading, there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the commodity to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual. ***"

Under the provisions of the above sections of the Federal Trade Commission Act the Commission, in a proper case, is authorized to proceed against anyone subject to that act. If any person engaged in the manufacture of ice cream, using coconut oil instead of butter fat, disseminates or causes to be disseminated, any advertisement, which represents such product to be a dairy product, by the United States mails, or in commerce by any means, for the purpose of inducing, or which is likely to induce, directly or indirectly the purchase thereof, or disseminates or causes to be disseminated any such advertisement

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