condition of the company's right to ship poultry products in intere commerce. The Court stated in See that it did not reach the quesof how the fourth amendment prohibition should be applied in se instances where inspection is required prior to operating a busis or marketing a product. But the Court's opinion leaves no doubt t the Government can never insist on unlimited search of premises I records without a warrant.

The Supreme Court has repeatedly ruled that Congress may not de constitutional rights indirectly by imposing conditions any more n it can by affirmative command. As the Court said in Gomillion v. htfoot, 364 U.S. 339, 347-48 (1960)," a constitutional power [such regulation of interstate commerce] cannot be used by way of a dition to attain an unconstitutional result'," since "constitutional nts would be of little value if they could be thus indirectly denied." The inspection provisions of H.R. 16363 are, of course, based on ilar language in last year's amendments to the Meat Inspection . Serious concern was expressed in the Senate and House concernthis extremely broad recordkeeping and inspection provision, and n the Senate debate and the conference report expressed the conssional intent that the Secretary of Agriculture should issue reguons setting forth specifically what records must be kept and under t circumstances they are to be made available to duly authorized resentatives of the Secretary.

hus, the legislative history of this meat inspection provision makes lear that Congress recognized its constitutional difficulties. Conss sought to cure them by directing the Secretary to provide by reguon some of the particularity that was missing from the statutory guage, in the light of the requirements of the fourth amendment. ut the promulgation of such regulations would not in itself satisfy requirements of the fourth amendment. In Camera and See the reme Court expressly invoked the numerous cases in which Federal rts have refused to uphold subpenas demanding company records are unduly broad and do not specify with particularity the records e produced or examined.

he Court in See emphasized that even though a statute grants a t of access to corporate records, the Government agency "must mit the confines of a search by designating the needed documents formal subpena." 387 U.S. at 544-45. The opinion goes on to I that it is "these rather minimal limitations on administrative acwhich we think are constitutionally required in the case of investive entry upon commercial establishments." And the court of aps has now expressly held in Stanack that this same requirement of gnation applies to a search warrant granting access to business

rds.

Te strongly urge that this committee write into H.R. 16363 at least imal constitutional limitations along this line, instead of delegating he Secretary the sole responsibility for interpreting and applying fourth amendment to hopelessly broad statutory language. The bill d be amended to authorize the Secretary to adopt regulations

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specifying which company records would be relevant to the effective enforcement of the act and the accomplishment of the statutory purposes. These regulations should also specify the terms and conditions under which specific records might be sought by inspection warrant or subpena.

If an inspector then deemed it necessary to see certain records of a company, he could present his request to the company, designating with particularity which records he wished to see. If the company did not believe that such records were within the type specified by the Secretary in regulations as necessary for enforcement of the act, or if for any reason questioned the inspector's authority, it could refuse inspection until such time as the inspector obtained a search warrant or subpena.

This three part approach of: (1) administrative specification by regulation of what records should be kept and made available for effective enforcement of the act, (2) designation by the inspector of what particular company records he wishes to see, and (3) the use of search warrants and subpenas when access is denied, would not only meet the requirements of the fourth amendment, but would also provide an effective means for achieving the statutory purpose. Attached to our statement is suggested language that would carry out this approach.

PACKAGING AND LABELING CONTROLS

One other aspect of the bill which we believe deserves some consideration is the authority given to the Secretary in section 8(b) and 8 (c) to prescribe the styles and size of type of required labeling and to prohibit the use of packages which he believes are false or misleading. The type size authority is not limited to the net quantity declaration, but instead extends to all required label statements. In this respect, the bill is contrary to the recently enacted Fair Packaging and Labeling Act, which authorizes type style, and size regulation only with respect to the net quantity declaration. We know of no reason for entrusting the Secretary of Agriculture with this additional and unprecedented authority over every detail of label design.

Finally, the provisions for prior approval of packages in sections 8(c) and (d) would appear to be inconsistent with the provisions of the Fair Packaging and Labeling Act, which rejected the initial proposals of administrative specification of package size and shape. Other foods remain subject to the provision in the Federal Food, Drug and Cosmetic Act that they will be deemed to be misbranded if the container "is so made, formed, or filled as to be misleading." This same provision would be applied to poultry by section 4(h) (4) as added by the bill.

(The attachment to Mr. Dunkelberger's statement is as follows:)

PROPOSED REVISION OF SECTION 11(b) OF H.R. 16363

SEC. 11(b). The following classes of persons shall maintain such records and for such period of time (not to exceed two years) as are specified by the Secretary in regulations as are properly necessary for the effective enforcement of this Act in order to insure against adulterated or misbranded poultry products for the American consumer; and all persons subject to such requirements shall, at all reasonable times, upon presentation of a search warrant by a duly authorized representative of the Secretary, afford such representative access to their places

BRA

CON

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of business and an opportunity to examine the facilities, inventory and records designated in such warrant, to copy any records designated in such warrant, and to take reasonable samples of their inventory upon payment of the fair market value therefor

(1) Any person that engages in the business of slaughtering any poultry or processing, freezing, packaging, or labeling any carcasses, or parts or products of carcasses, of any poultry, for commerce, for use as human food or animal food;

(2) Any person that engages in the business of buying or selling (as poultry products brokers, wholesalers or otherwise), or transporting, in commerce, or storing in or for commerce, or importing, any carcasses, or parts or products of carcasses, of any poultry;

(3) Any person that engages in business, in or for commerce, as a renderer, or engages in the business of buying, selling, or transporting, in commerce, or importing, any dead, dying, disabled, or diseased poultry or parts of the carcasses of any poultry that died otherwise than by slaughter. The Secretary shall promulgated regulations setting forth specifically what categories of records shall be kept for the effective enforcement of the provisions of this Act and setting forth the reasonable terms and conditions under which these records are to be made available to duly authorized representatives of the Secretary, including provisions for representatives of the Secretary to designate, in advance of each inspection, the particular records sought to be inspected and for such representatives to obtain a search warrant designating the records to be inspected in the event that access to such records is denied.

Mr. DUNKELBERGER. At this point, I would like to summarize the last five or six pages. This is essentially a legal discussion, on a very simple point. In June of 1967, the Supreme Court held in two cases cited in our testimony that it is unconstitutional search and seizure for the Government to have unlimited access to any premises, private or commercial. Our feeling is that although on-the-spot inspection of the poultry product is well established and certainly consistent with a long line of cases in this area, that this new authority to have unlimited access to the records of companies covered by the act should be modified by the Supreme Court announcements in the Camera and See cases. The section that we would add to the bill-it is the last two pages attached to the statement-the proposed revision of 11(b) which would essentially do this, that the Secretary should adopt regulations specifying which record his inspectors should be able to see in order to enforce the act. The inspector could then go to the plant and say "I want to see these records the specific records," identifying them by specificity or at least the types of records he has in mind.

is impor

If, for any reason, the company feels the inspector is not authorized to see those records, the feeling they are not related to the enforcement of the act and are not covered under the regulations, the company has the right to insist that a search warrant be obtained, and then the inspector can proceed to get a search warrant and have complete access to those records.

We would like to add, after the Camera and See decisions, that the Food and Drug Administration announced that if inspections were denied to any of its inspectors under the long established inspector provisions of the Food and Drug Act, they should then proceed to go to court and get the warrant. And the National Canners Association advised its members that we did not believe that it would be either in the interest of the industry, the public, or the agency to insist on such a warrant. And I believe the general practice is the exception to that. FDA inspectors have been allowed in the plants on the same basis since those decisions as they have been before. We just believe that it

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the prop is necess

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is important to protect the rights of the canners. If the time ever comes when a canner covered by this act, believes that the inspection request is not justified or raises the question of law, that the canner should have, at the peril of criminal prosecutions, to let the person in and see the records, they should be able to say "I do not believe that you should see those records." They do not relate to the enforcement of the act," or some other basis on which he might claim that they should in and see the records should be able to say, "I do not believe that you should see those records. They do not relate to the enforcement of court, get a search warrant and see the records if the the court agrees that it is necessary for the enforcement of the act.

Senator JORDAN. In other words, you do not question the right or the propriety of the Secretary or his inspectors in seeing anything that is necessarily related to this act, but you do not believe that he should have free access to all of the records in that plant?

Mr. DUNKELBERGER. That is right, sir. And the only practical way to test that in any decision is to say, "Well, if the man in the plant questions the right to see the particular records, then, it can be resolved if the inspector gets the search warrant-he gets in and he sees the

records."

We wholeheartedly feel that he should have the right to see the records, if they are necessary to the enforcement of the act. If there is any dispute it should be resolved by the courts, and we think it is very workable. And so far as I have seen under the Food and Drug Act, I do not know of any food plant that has insisted that the inspector get a warrant. Probably, the agency only made reasonable and appropriate requests to inspect. We think it would be workable here.

I might add that we made a similar proposal on the House side and the Department apparently did not favor the inclusion of this provision in the bill. We do think it is worth while.

Now, turning to page 10 of my statement, there is one other point, "Packaging and Labeling Controls":

One other aspect of the bill which we believe deserves some consideration is the authority given to the Secretary in sections 8(b) and 8(c) to prescribe the styles and size of type of required labeling and to prohibit the use of packages which he believes are false or misleading. The type of size authority is not limited to the net quantity declaration, but instead extends to all required label statements. In this respect, the bill is contrary to the recently enacted Fair Packaging and Labeling Act, which authorizes type style and size regulation only with respect to the net quantity declaration. We know of no reason for entrusting the Secretary of Agriculture with this additional and unprecedented authority over every detail of label design.

I should add that all required labeling would be subject to a general requirement of conspicuousness and prominence as contained in the present act.

Finally, the provisions for prior approval of packages in sections 8 (c) and (d) would appear to be inconsistent with the provisions of the Fair Packaging and Labeling Act, which rejected the initial proposals of administrative specification of package size and shape. Other foods remain subject to the provision in the Federal Food, Drug, and Cosmetic Act that they will be deemed to be misbranded if the con

96-351-68- -15

CO

tainer "is so made, formed, of filled as to be misleading." This same provision would be applied to poultry by section 4(h) (4) as added. by the bill.

No evidence has been presented why poultry packaging should be subject to greater controls than the packaging of other foods and thousands of other consumer commodities. Industry must be free to develop new packaging techniques, free from the requirement of Government premarket approval. If in actual use a package is deemed misleading,. then appropriate enforcement action can be taken.

I would like to express my appreciation to the committee for thist opportunity to testify on this important legislation. If you have any questions, I will do my best to answer them.

Senator JORDAN. Thank you very much.

Senator Byrd?

Senator BYRD. Thank you, Mr. Chairman. I just want to say that his proposal seems fair to me, and an appropriate one which should be considered.

Mr. DUNKELBERGER. Thank

you very much.

Senator BYRD. Thank you, sir. That is all, Mr. Chairman.

Senator JORDAN. Senator Young, any questions?

Senator YOUNG. I have no questions.

Thank you.

Senator JORDAN. Thank you very much.

We appreciate your testimony, and we are glad to have had you with us.

Mr. DUNKELBERGER. Thank you.

Senator JORDAN. Our next witness is Mr. Frank Frazier, executive vice president, National Broiler Council.

We are glad to have you back with us. We are always glad to see you. Please give your name and whom you represent and the name of the gentleman accompanying you, for the record.

Mr. FRAZIER. R. Frank Frazier, accompanied by James F. Rill of Collier, Shannon and Rill, legal counsel, on behalf of the National Broiler Council, 1155 15th Street NW., Washington, D.C.

STATEMENT OF R. FRANK FRAZIER, EXECUTIVE VICE PRESIDENT,
NATIONAL BROILER COUNCIL

ground of useful.

Mr. FRAZIER. Mr. Chairman and members of the subcommittee, I am appearing in my capacity as executive vice president of the National Broiler Council. I appreciate this opportunity to present this statement on behalf of the council in support of the principles contained in H.R. 16363 which was passed by the House of Representatives on June 13, 1968. This bill represents a modification of the administration proposal which was introduced by Senator Ellender on February 2, 1968, and remains in most respects identical to it.

The National Broiler Council is an onprofit trade association representing all segments of the vertically integrated U.S. broiler industry. Its membership is comprised of firms producing and marketing approximately 65 percent of the broilers sold in the United States.

Inasmuch as meat-type chickens constitute the overwhelming preponderance of poultry volume presently and prospectively regulated by Federal inspection, sanitation. and labeling standards, some back

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