[Senate Hearing 107-528]
[From the U.S. Government Publishing Office]
S. Hrg. 107-528
S. 1233, THE PRODUCT PACKAGING PROTECTION ACT: KEEPING OFFENSIVE
MATERIAL OUT OF OUR CEREAL BOXES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ANTITRUST,
BUSINESS RIGHTS, AND COMPETITION
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
AUGUST 1, 2001
__________
Serial No. J-107-35
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
80-422 WASHINGTON : 2002
________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
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Subcommittee on Antitrust, Business Rights, and Competition
HERBERT KOHL, Wisconsin, Chairman
PATRICK J. LEAHY, Vermont MIKE DeWINE, Ohio
RUSSELL D. FEINGOLD, Wisconsin ORRIN G. HATCH, Utah
CHARLES E. SCHUMER, New York STROM THURMOND, South Carolina
MARIA CANTWELL, Washington ARLEN SPECTER, Pennsylvania
JOHN EDWARDS, North Carolina SAM BROWNBACK, Kansas
Victoria Bassetti, Majority Chief Counsel
Peter Levitas, Minority Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 3
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 24
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin... 1
WITNESSES
Burris, David, Businessman, Baker City, Oregon................... 7
Fisher, Alice, Deputy Assistant Attorney General, Criminal
Division, Department of Justice, Washington, D.C............... 5
Petruccelli, Paul, Chief Marketing Counsel, Kraft Foods North
America, Inc., Northfield, Illinois............................ 9
Sarasin, Leslie, President and Chief Executive Officer, American
Frozen Food Institute, McClean, Virginia....................... 14
SUBMISSIONS FOR THE RECORD
American Bakers Association, American Frozen Food Institute, Food
Distributors International, Food Marketing Institute, General
Mills, Grocery Manufacturers of America, Independent Bakers
Association, Kellogg's, Kraft Foods, National Food Processors
Association, National Frozen Pizza Institute, joint letter..... 22
American Free Trade Association, Miami, FL, statement............ 22
Anti-Defamation League of B'nai B'rith, New York, NY, letter..... 24
General Mills, Inc., Austin P. Sullivan, Jr., Senior Vice
President, Corporate Relations, Minneapolis, MN, letter........ 25
Kellogg Company, George A. Franklin, Vice President, External
Affairs, Battle Creek, MI, letter.............................. 26
S. 1233, THE PRODUCT PACKAGING PROTECTION ACT: KEEPING OFFENSIVE
MATERIAL OUT OF OUR CEREAL BOXES
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WEDNESDAY, AUGUST 1, 2001
U.S. Senate,
Subcommittee on Antitrust, Business Rights, and
Competition, Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:06 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Herb Kohl,
Chairman of the Subcommittee, presiding.
Present: Senators Kohl and DeWine.
OPENING STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Chairman Kohl. The Antitrust and the Business Rights
Subcommittee will come to order.
Today's hearing responds to a disturbing trend of product
tampering--the placement of hate-filled literature into the
boxes of food that Americans bring home from the grocery store
every day. Too many Americans have recently opened groceries
and found offensive, racist, anti-Semitic, pornographic and
hateful leaflets. In the last few years, food manufacturers
have received numerous complaints from consumers who report
finding such literature. Hundreds more incidents have likely
gone unreported, and this behavior is downright shameful.
No one should have to face this type of assault in the
privacy of his or her home, and these incidents can be
especially harmful to children. Take, for example, the story of
8-year-old Mario Alexander, who discovered hateful literature
in his favorite cereal box. Mario was very capable of reading
the handbill he found and, as a result, he was forced to deal
with a hateful issue long before he was mature enough to
understand it.
These are not isolated occurrences. In fact, Kraft Foods
has documented more than 80 incidents in the past 4 years
alone, which is almost one every 2 weeks. General Mills has
documented an additional 25 cases a year, and Kellogg's reports
many more. Of course, there is no way to calculate the number
of incidents that go unreported. Many other manufacturers and
distributors also have stories about this type of product
tampering.
So the companies that make these products are also victims.
They have their names and reputations slandered by this
activity. As a former grocery store owner myself, I can tell
you that the store itself that sells these products is injured
as well. The consumer establishes a trust with their grocery
store, and incidents like the ones we are discussing today
violate that trust and harm that business.
Unfortunately, when consumers or companies turn to the
authorities, they cannot be helped. According to the FBI and
the Food and Drug Administration's Office of Criminal
Investigation, these actions are not covered by Federal product
tampering statutes. A loophole in Federal antitampering laws
allows it to go unpunished, and in only a couple of States laws
are in place. So, along with Senators Hatch, Leahy, Mike DeWine
and Durbin, we introduced a Product Packaging Protection Act of
2001 to close this loophole in Federal product tampering law
and protect consumers.
This is a small, but meaningful, thing we can do to make
our current laws more effective and to give consumers and
companies the help they need. The Product Packaging Protection
Act of 2001 would prohibit the placement of any writing or
other material inside a consumer product without the permission
of the manufacturer, authorized distributor or retailer.
Closing this gap in Federal law would appropriately punish
people who violate the integrity of the food product,
compromise consumers' faith in the food they purchase in a
grocery store, and damage the good name and reputation of the
food manufacturer.
Opening a cereal box in the privacy of your own home should
not be risky or traumatic. Unfortunately, for one of our
witnesses today, it was, just like it was for 8-year-old Mario
Alexander and hundreds more. A small, simple change to a
Federal law can help, and so we should do it.
We look forward today to an informative hearing. And I
would now like to call on my colleague and former chairman of
this committee, who will be a chairman again, I am sure, a man
whom I delight in working with and for, Senator Mike DeWine.
[The prepared statement of Senator Kohl follows:]
Statement of Hon. Herbert Kohl, a U.S. Senator from the State of
Wisconsin
Today's hearing responds to a disturbing trend in product
tampering--the placement of hat-filled literature into the boxes of
food that Americans bring home from the grocery store every day.
Too many Americans have recently opened groceries and found
offensive, racist, anti-Semitic, pornographic and hateful leaflets. In
the last few years, food manufacturers have received numerous
complaints from consumers who report finding such literature. Hundreds
more incidents have likely gone unreported.
This behavior is outright shameful. No one should have to face this
type of assault in the privacy of his or her home. And these incidents
can be especially harmful to children. Take for example the story of
eight-year-old Mario Alexander who discovered offensive literature in
his favorite cereal box. Mario was very capable of reading the handbill
he found, and as a result he was forced to deal with a hateful issue
long before he was mature enough to understand it.
These are not isolated occurrences. In fact, Kraft Foods has
documented more than 80 incidents in the past four years, almost one
every two weeks. General Mills has documented an additional 25 cases
per year, and Kellogg's reports many more. Of course, there is no way
to calculate the number of incidents that go unreported. Many other
manufacturers and distributors also have stories about this type of
product tampering.
So, the companies that make these products are also victims. They
have their names and reputations slandered by this activity. And, as a
former grocery store owner, I can tell you that the store that sells
these products is injured as well. A consumer establishes a trust with
their grocery store and incidents like the ones we're discussing today
violate that trust and harm that business.
Unfortunately, when consumers or companies turn to the authorities,
they cannot be helped. According to the FBI and the Food and Drug
Administration's Office of Criminal Investigation, these actions are
not covered by federal product tampering statutes. A loophole in
federal anti-tampering law allows it to go unpunished. And only a
couple of states have laws. So, along with Senators Hatch, Leahy,
DeWine and Durbin, we introduced the Product Packaging Protection Act
of 2001 to close this loophole in federal product tampering law and
protect consumers.
This is a small but meaningful thing we can do to make our current
laws more effective and to give consumers and companies the help they
need. The Product Packaging Protection Act would prohibit the placement
of any writing or other material inside a consumer product without the
permission of the manufacturer, authorized distributor, or retailer.
Closing this gap in federal law would appropriately punish people who
violate the integrity of the food product, compromise reputation of the
food manufacturer.
Opening a cereal box in the privacy of your own home shouldn't be a
risky or traumatic even. Unfortunately, for one of our witnesses today,
it was. Just like it was for eight-year-old Mario Alexander and
hundreds more. A small, simple change to a federal law can help, and we
should do it.
STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF
OHIO
Senator DeWine. Mr. Chairman, thank you very much. Let me
thank you for holding this hearing and for introducing this
bill. Along with you, I am concerned about this relatively new
type of product tampering that is currently not penalized under
our law.
This tampering does not involve inserting harmful
ingredients into food products, but rather it involves the
placement of hate-filled literature, hate-filled literature
placed into boxes of cereal or other food products, products
that millions of Americans purchase every day. While this type
of product tampering may not send someone to the hospital, it
is still very harmful to innocent victims.
As you have mentioned, Kraft Food and other companies have
received and documented numerous complaints in recent years
involving consumers who unwittingly opened up the product only
to be shocked by the appearance of offensive, racist,
pornographic and other hateful material. We have no clear
indication of how many victims have suffered from this type of
tampering, but we know there are many. Unfortunately, when
these victims report these hateful acts, law enforcement
officials must respond that they are now powerless to stop this
offensive and harmful activity.
According to the Federal Bureau of Investigation and the
Food and Drug Administration's Office of Criminal
Investigation, these actions are not currently covered by
Federal product tampering statutes. Those laws only cover the
actual products themselves, but not the packaging. Now, in
response to incidents in their respective States, both the
States of New Jersey and California have recently passed laws
to criminalize this behavior, and these States certainly should
be commended. However, I believe that we must do more.
The bill that the chairman and Senator Hatch have
sponsored, along with Senator Leahy, the Product Packaging
Protection Act of 2001, would prohibit the placement of any
writing or other material inside a consumer product without the
permission of the manufacturer, authorized distributor or the
retailer. Closing this gap in Federal law would appropriately
punish those whose actions harm the American consumers and
force their hateful messages into our homes. This legislation
would finally give law enforcement agencies the ability to come
to the aid of these victims.
So, Mr. Chairman, I look forward to hearing from the
witnesses today, and exploring ways that we can put an end to
this offensive product tampering once and for all.
I thank the chair.
[The prepared statement of Senator DeWine follows:]
Statement of Hon. Mike DeWine, A U.S. Senator from the State of Ohio
Good afternoon. Let me begin by thanking Chairman Kohl for holding
this hearing today. Along with my colleagues, I am concerned about a
new type of product tampering that is not penalized under current law.
This tapering doesn't involve inserting harmful ingredients into food
products, But rather involves the placement of hate-filled literature
into boxes of cereal or other food packages--products that millions of
Americans purchase on a daily basis. While this type of product
tampering may not send someone to the hospital, it is still very
harmful to innocent consumers.
Kraft Foods Company and others have received and documented
numerous complaints in recent years involving consumers who unwittingly
opened products--only to be shocked by the appearance of offensive,
racist, pornographic, and other hateful materials. We have no clear
indication of how many victims have suffered from this type of product
tampering. Unfortunately, when these victims report these hateful acts,
law enforcement officials must respond that they are powerless to stop
this offensive and harmful activity. According to the Federal Bureau of
Investigations and the Food and Drug Administration's Office of
Criminal Investigation, these actions are not covered by federal
product tampering statutes. Those laws only cover the actual products,
themselves, not the packaging. In response to incidents in their
respective states, both New Jersey and California passed laws to
criminalize this behavior. These states should be commended. However,
we must do more.
The bill that Senators Kohl and Hatch have sponsored, which Senator
Leahy and I have co-sponsored--the ``Product Packaging Protection Act
of 2001''--would prohibit the placement of any writing or other
material inside a consumer product without the permission of the
manufacturer, authorized distributor, or retailer. The penalty for
violation of this measure would be a fine of up to $250,000 per offense
and/or imprisonment of up to three years.
Closing this gap in federal law would appropriately punish those
who force their hateful messages into American homes. This legislation
would finally give law enforcement agencies the ability to come to the
aid of these victims.
I look forward to hearing from the witnesses today and exploring
ways that we can put an end to this offensive product tampering--once
and for all. Thank you.
Chairman Kohl. Thank you, Senator DeWine.
Today, we have four distinguished witnesses with us. We
would like to particularly thank the Department of Justice and
its representative, Deputy Assistant Attorney General Alice
Fisher, testifying today on the same panel as the rest of our
witnesses. This will help us expedite the hearing.
Our first witness, Alice Fisher, is Deputy Assistant
Attorney General in the Criminal Division at the Department of
Justice. Prior to joining the Department of Justice, Ms. Fisher
served as a partner in the Litigation Department of Latham &
Watkins. It is good to have you with us today, Ms. Fisher.
Also joining us today is Mr. David Burris, who has made the
long trip from Baker City, Oregon, to give his testimony. Mr.
Burris had the unfortunate experience of discovering some of
this hateful material while preparing his Thanksgiving dinner.
Mr. Burris attended Blue Mountain College and has owned and
operated his own pet supply business for 20 years. Mr. Burris
also helped to start the Baker County People for Human Dignity.
Also joining us today is Mr. Paul Petruccelli, chief
marketing counsel for Kraft North America. Mr. Petruccelli is a
member of the Kraft team that addresses significant sources of
consumer complaints, such as those related to unauthorized
print materials. Mr. Petruccelli is an expert in food law,
including marketing and regulatory issues, having served 13
years at the Federal Trade Commission's Bureau of Consumer
Protection. He received his law degree from the Rutgers School
of Law. Kraft is a very important company in my State of
Wisconsin, and so we thank you for being here.
And, finally, we have Ms. Leslie Sarasin, president and
chief executive officer of the American Frozen Foods Institute.
Ms. Sarasin has been with the institute for 12 years and was
elected as its president in 1999. Ms. Sarasin earned her J.D.
at the University of San Diego, after receiving her bachelor's
degree from Smith College.
So we thank you all for being here today. We look forward
to your testimony. We ask you to limit your testimony to 5
minutes each. However, we will hold the record open for 1 week
to allow you to submit written testimony of any length. After
you have presented your testimony, members will have an
opportunity to ask questions. So, if you would all come forward
at this time.
Ms. Fisher, we will start with your testimony, and we are
looking forward to hearing from you.
STATEMENT OF ALICE FISHER, DEPUTY ASSISTANT ATTORNEY GENERAL,
CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Ms. Fisher. Thank you, Senator.
Good afternoon, Mr. Chairman and Ranking Member DeWine. I
am pleased to appear before you today to discuss S. 1233, the
Product Packaging Protection Act of 2001. This bill would
provide criminal penalties for the unauthorized insertion of
written material into consumer products and the packaging of
consumer products prior to the sale of these items.
Consumers in places as far apart as New Jersey and
Washington State have had the unsettling experience of opening
products, such as boxes of cereal, that appear untampered with
and finding obscene, racist, and offensive material has been
hidden inside. For example, a few years ago there were a report
of numerous complaints of racist messages appearing in ice
cream cups and cracker boxes. In cases such as these, young
children have been exposed to offensive messages and their
parents have had no opportunity to protect them.
Existing Federal law does not address this nationwide
problem. So, when victims have sought redress from our Federal
prosecutors, prosecutors have not had the tools to combat this
activity. Currently, the primary tool for attacking product
tampering is Section 1365 of Title 18 of the United States
Code, the Federal Anti-Tampering Act. That law makes it a crime
to tamper with consumer products, or the packaging of such
products, where the perpetrator acts with reckless disregard
for, or indifference to, the risk of death or serious bodily
injury to an individual. This law was the result of the well-
known Tylenol tampering incident in 1982, which resulted in
seven deaths. There have been several Federal prosecutions
under this law since its enactment.
Also, under the Federal Anti-Tampering Act, it is a crime
to taint a consumer product with the intent to damage a
business. This section of the law focuses on harm to the
business, regardless of whether the perpetrator intends harm to
the individual. Again, however, this section only criminalizes
activity that actually taints a product, its labeling or its
container.
The bill you are now considering would supplement the
existing statute by providing criminal penalties for product
tampering that takes the form of inserting written materials,
such as leaflets or pamphlets, into the packages without the
approval of the manufacturer, retailer, distributor or the
consumer, even if the product or the package is not
adulterated. Although we do not have fully comprehensive
statistics available, we do know that a number of product
manufacturers have experienced complaints concerning the
unauthorized insertion of such materials. Even when the act of
inserting such materials does not involve the adulteration of
the product contained within the package, it clearly raises
questions in the minds of the consumers concerning the
integrity of the product that they are about to use or consume.
Thus, the result of this activity is harm to both businesses
and consumers who are exposed to the unwanted and often
shocking materials.
S. 1233 would prohibit the placing of any written material
before the sale of such a product. It is, thus, a content-
neutral regulation that does not discriminate among categories
of speech, rather it is targeted toward the real problem
businesses and consumers face when someone places materials
into our foods and our medicines.
In conclusion, the right of free expression available to
all Americans under the First Amendment of the Constitution
affords our citizens ample opportunity to express their views.
It is inappropriate that consumer products be used as the
unauthorized vehicle for conveying beliefs or illicit messages.
The rights of manufacturers to market their product without
interference and the needs of consumers to be free from doubts
concerning the integrity of such products must be protected.
Mr. Chairman, thank you for giving the Department the
opportunity to express its views on this legislation. We would
be pleased to discuss this proposal with you and other Federal
agencies, such as the Food and Drug Administration, that might
be affected by its enactment. I would be happy to answer any
questions you may have.
[The prepared statement of Ms. Fisher follows:]
Statement of Alice Fisher, Deputy Assistant Attorney General, Criminal
Division, U.S. Department of Justice
Good afternoon, Mr. Chairman and Members of the Subcommittee. I am
pleased to appear before you today to discuss S. 1233, the ``Product
Packaging Protection Act of 2001.'' This bill would provide criminal
penalties for the unauthorized insertion of written material into
consumer products and the packaging of consumer products, prior to the
sale of the items. Consumers in places as far apart as New Jersey and
Washington state have had the unsettling experience of opening
products, such as boxes of cereal, that appear untampered with and
finding that obscene, racist or other offensive material has been
surreptitiously placed inside. For example, a few years ago there was a
report of over numerous complaints about racist messages appearing in
ice cream cups and cracker boxes. In cases such as these, young
children have been exposed to offensive messages, and their parents
have had no opportunity to protect them. Existing federal law does not
address this nationwide problem.
Currently, the primary tool for attacking product tampering is
Section 1365 of Title 18 of the United States Code, the Federal Anti-
Tampering Act. That law makes it a crime to tamper with consumer
products, including the packaging and labeling of such products, where
the perpetrator acts with reckless disregard for, or indifference to,
the risk that another person will suffer death or bodily injury. This
law was the result of the well-known Tylenol tampering incident in
1982, which resulted in seven deaths. There have been several federal
prosecutions under this law since its enactment.
Under the Federal Anti-Tampering Act, it is also a crime to taint a
consumer product or render its labeling or container false or
misleading with the intent to damage a business. This section of the
law focuses on the intent to cause damage to a business, regardless of
whether the perpetrator has any intent to cause injury or harm to the
individual who buys and/or uses the product. Again, however, the
section only criminalizes activity that actually taints a product, its
labeling, or its container.
The bill you are now considering would supplement the existing
statute by providing criminal penalties for product tampering that
takes the form of inserting written material into packages without the
approval of the manufacturer, retailer, or authorized distributor, even
if the product contained within the package is not adulterated.
Although we do not have fully comprehensive statistics available, we do
know that a number of product manufacturers have experienced complaints
concerning the unauthorized insertion of written material into the
packaging of their products. Even when the act of inserting such
material does not involve an adulteration of the product contained
within the package, it clearly raises questions in the minds of
consumers concerning the integrity of the product that they are about
to use or consume. Thus, the result of this activity is harm to both
businesses and consumers, who are exposed to unwanted, and often
shocking, materials.
S. 1233 would prohibit the placing of ``any'' writing inside
consumer products before the sale of such a product. It is thus a
content-neutral regulation that does not discriminate among categories
of speech. It is targeted toward the real problem businesses and
consumers face when someone places unauthorized, hidden materials into
a consumer product.
As a technical matter, other federal statutes (e.g.,18 U.S.C.
Sec. 2332b(g)(3)) cross reference the definition of ``serious bodily
injury'' contained in what is now section 1365(g)(3). Because S. 1233
would redesignate subsection (g) of 18 U.S.C. Sec. 1365 as subsection
(h), a conforming amendment should be made to 18 U.S.C.
Sec. 2332b(g)(3) and any other statute that cross references section
1365(g)(3).
In conclusion, the right of free expression available to all
Americans under the First Amendment of the Constitution affords our
citizens ample opportunity to express their views. It is inappropriate
that consumer products be used as the unauthorized vehicle for
conveying beliefs or illicit messages. The rights of manufacturers to
market their products without interference and the need of consumers to
be free from doubts concerning the integrity of the products they have
purchased must be protected.
Mr. Chairman, thank you for giving the Department the opportunity
to express its views on this legislation. We would be pleased to
discuss this proposal with you and with other federal agencies that
might be affected by its enactment, such as the Food and Drug
Administration, in greater detail. I would be happy to answer any
questions you may have.
Chairman Kohl. Thank you, Ms. Fisher.
Mr. Davis Burris?
STATEMENT OF DAVID BURRIS, BUSINESSMAN, BAKER CITY, OREGON
Mr. Burris. Chairman Kohl and Senator DeWine, I am David
Burris from Baker City, Oregon. I have lived in Baker City most
of my life and own and operate a small pet supply business
there. Baker City is about 10,000 population and has a very
interesting downtown historic district that has received
national recognition for its restoration of gold mining era
buildings. It is an excellent place to live and raise a family.
As a resident, I have always felt very secure. I felt the
security until last Thanksgiving time when I was getting ready
to prepare a Thanksgiving meal for my guests. I appreciate the
opportunity to testify today and tell you about an incident at
that time that changed all of this.
On November 22, 2000, I went to my local Safeway
supermarket, which I shop at on a regular basis. As I was
shopping, I purchased a JELL-O No Bake Strawberry Cheesecake
mix. Later that evening, I decided to make it, and when I
opened the box, I noticed a coupon--an example here. I decided
to leave it in the box and retrieve it later before disposing
of the box. When I went back to get the coupon, which was
folded, I opened it and noticed a black Nazi swastika and some
wording saying, ``Deport `the N word,''' which I will not use.
It is best not to say that. It also had initials of a group and
a postal box number in Nebraska. This coupon had been made on a
copying machine of some sort.
At first, I was totally shocked, as I am aware of the Aryan
Nation group in Idaho nearby. I thought this might be some sort
of joke, but realized it was not. I showed it to my guests, and
they were shocked also. As I talked with them about it, we
decided the cake itself should not be consumed. It might be
contaminated. The consumer hot line number was on the box, so I
decided to call JELL-O to let them know about this.
When I contacted JELL-O, the lady there said she was going
to put me right through to someone that knew more about this,
and they would talk to me. That person said they would like to
have the box and the coupon. They asked me if there was any
signs of the box having been tampered with. I told her, no, the
box had no signs and was heat-sealed at the factory. They also
asked me the name of the store and the street location of it. I
was told by this person that a courier would be at my home the
next morning at 10 a.m. to pick up the box and the coupon. The
courier arrived at 9:40 a.m. He took possession of the box and
the coupon and placed them in a Ziploc bag.
I have to say that since this incident, I am very insecure
with packaged products I buy. I look at the box, and if I
notice anything unusual, I avoid it. I doubt I will ever feel
secure again in this regard. It has also changed the way my
friends shop too. Something must be done to protect people from
this. If a coupon can be inserted in a box in a number of
different company's products, what can these people do to the
product? The fact that these products are distributed
nationwide scares me. What if a child had opened a box and read
this hateful material?
Thank you for letting me share my story. I hope it helps
you get some legislation passed that will deter this kind of
activity.
[The prepared statement of Mr. Burris follows:]
Statement of David Burris, Businessman, Baker City, Oregon
Chairman Kohl and Senator DeWine, I am David Burris from Baker
City, Oregon. I have lived in Baker City most of my life and own and
operate a small pet supply business there. Baker City is about 10,000
population and has a very interesting downtown historic district that
has received national recognition for its restoration of gold mining
area buildings. It is an excellent place to live and raise a family. As
a resident I have always felt very secure. I felt this security till
last year at Thanksgiving time when I was getting ready to prepare a
Thanksgiving meal for my guests. I appreciate the opportunity to
testify today and tell you about the Incident at that time that changed
all of this.
On November 22, 2000, I went to my local Safeway supermarket which
I shop at on a regular basis. As I was shopping I purchased a Jello No
Bake Strawberry Cheesecake Mix. Later that evening I decided to make it
and when I opened the box I noticed a coupon. I decided to leave it in
the and retrieve it late before disposing of the box. When I went back
to get the coupon, which was folded, I opened it and noticed a black
Nazi swastika and some wording saying deport ``The N word.'' It also
had the initials of a group and postal box number in Nebraska. This
coupon had been made on a copying machine of some sort. At first I was
totally shocked as I am very aware of the Aryan Nation group in Idaho.
I thought this might be some sort of joke but realized it wasn't. I
showed it to my guests and they were shocked also. As I talked with
them about it we all decided that the cake itself could be
contaminated. The consumer hotline number was on the box so I decided
to call to let Jello know about this. When I contacted Jello the lady
there said that she was going to put me right through to someone that
knew more about this and they would talk to me. That person said they
would like to have the box and the They asked me if there were any
signs of the box having been tampered with. I told her no, that the box
has no signs and was heat sealed at the factory. They also asked me the
name of the store and the street location of it. I was told by this
person that a courier would be at my home the next morning at 10 AM to
pickup the box and coupon. The courier arrived at 9:40 AM. He took
possession of both the box and coupon and placed them in a Ziploc bag.
On November 28, 2000 I received a letter from Carla Mikell-
executive representative at the Jello/Kraft Foods Consumer Resource and
Information Center. She said she was sorry to learn about the offensive
literature in the Jello No Bake Desert Cheesecake with Strawberry
Topping. She said that my coupon sounded similar to reports they had of
other consumers finding this sort of printed materials in a number of
products including those from different companies in the New Jersey
stores. She told me that they were actively working with law
enforcement and other companies to investigate the source of this
printed material in New Jersey and that this might be related in some
way. She was very nice and sent a number of free food coupons.
I have to say that since this incident I am very insecure with
packaged food products I buy. I look at the box and if I notice
anything unusual I avoid it. I doubt that I will ever feel secure again
in this regard. It has also changed the way my friends shop too.
Something must be done to protect people from this. If a coupon can be
inserted in a box and a number of different companies products. . .
.what can these people do to the product? The fact that these products
are distributed nationwide scares me. What if a child had opened a box
and read this hateful material?
Thank you for letting me share my story. I hope it helps you to get
some legislation passed that will deter this kind of activity.
Chairman Kohl. We thank you, Mr. Burris.
Mr. Paul Petruccelli?
STATEMENT OF PAUL PETRUCCELLI, CHIEF MARKETING COUNSEL, KRAFT
FOODS NORTH AMERICA, INC., NORTHFIELD, ILLINOIS
Mr. Petruccelli. Mr. Chairman, Senator DeWine, my name is
Paul Petruccelli, and I am chief marketing counsel for Kraft
Foods North America. I am very grateful for the opportunity to
testify on behalf of Kraft regarding the importance of the
proposed Product Packaging Protection Act of 2001.
Kraft Foods is the largest branded food and beverage
company headquartered in the United States. We market some of
the best-known and best-loved food products in this country,
including DiGiorno pizza, Oscar Mayer hot dogs, Post cereals,
Kool-Aid soft drinks, Nabisko cookies and crackers, to name
only a very few. Our products can be found in a pantry, a
refrigerator or a freezer in virtually every home in the land.
Kraft has spent decades building consumers' trust in its
brands and in the product quality that they represent. And we
are increasingly concerned about reports from consumers across
the country who have found offensive messages and other
unauthorized materials in packages of our products. We have
received approximately 80 consumer complaints since 1997 in
this regard. To date, in 2001, we have received 15 such
complaints, putting us on a pace to receive approximately 25
this year.
While I did not think it appropriate to distribute or quote
from these materials, let me give you a flavor from some of the
reports that we received. A consumer from Massachusetts found a
pornographic drawing inserted into a box of JELL-O pudding. A
California consumer opened a box of Minute rice and found a
swastika and related literature of a racist nature. Another
California consumer discovered racist comments upon opening a
box of Alpha Bits cereal. Consumers in Maine and New Jersey
found religious messages in Oscar Mayer Lunchables and in Post
Shredded Wheat. A Pennsylvania consumer discovered an anti-meat
brochure inside the box of a DiGiorno frozen pizza, and so on,
and so on.
This recitation of tampering examples is, of necessity,
somewhat bland. It does not begin to describe the ugly hateful
nature of some of these materials, nor can I really capture the
emotional and psychological impact that discovering these
materials frequently has upon consumers. As we are the
consumer's natural contact point, they often call us in an
agitated state after being assaulted by these materials. In
some instances, the consumer's young child has discovered some
racist or sexist or anti-gay message, and the consumer may be
distraught at the prospect of having to explain to a young
child about the presence of some of these uglier elements of
our society. Aside from the emotional impact of the incidents,
these consumers rightly conclude that the product they
purchased has been tampered with, and their first instinct, of
course, is to blame Kraft Foods, despite our assurances to the
contrary.
Even those consumers who are mollified somewhat by our
explanations may have lost a degree of trust in Kraft Foods
that we can never quite hope to recapture, and of course we
have no way of knowing how many consumers' trust we may lose
from what are undoubtedly the many consumers who encounter
these materials upon one of our packages, but never report the
incident to us.
These incidents of tampering amount to product hijacking.
They cause significant injury to consumers, to manufacturers
and to stores. Consumers may be emotionally harmed as a result
of being accosted by some of this literature, a child may be
traumatized, adults may be offended by presentation of
particular beliefs or exhortations to take actions against
particular groups. Manufacturers and retailers, of course, may
be injured by the loss of consumer confidence and potential
business that ensues from such an incident. And in this regard,
it bears emphasis that we always operate on the assumption that
any complaint that we receive is evidence of at least 10 other
consumers who did not report the complaint to us. The injury to
the reputation of a retail store or to the producer of the
affected product is incalculable and, we believe, grievous.
Unfortunately, several elements of the current Federal
Anti-Tampering Act render it ineffective to prevent the harm
that I have just described. To more effectively protect
consumers against this additional form of product tampering, we
believe the act must be amended to explicitly address the
conduct in question. The Senate bill would provide the Federal
Government with the authority it needs to more effectively
protect consumers against individuals who insert hateful,
offensive, misleading or simply unauthorized messages or
pictures into the packages of consumer products.
While we are fully supportive of the bill, we would like to
suggest a modification to improve its effectiveness. We would
recommend that the subcommittee insert the phrase ``or on'' so
that the bill would cover situations in which these materials
are placed on the package, not just in the package. In our
experience, there have been a number of such incidents, and we
believe that conduct should be prohibited as well.
Mr. Chairman, the bill could help us address the problem in
a manner that is narrowly tailored to address the sort of harm
we have been seeing in the past few years and prevent these
product tamperers from commandeering a cereal box as their
personal soapbox. For this reason, on behalf of Kraft Foods, I
respectfully urge enactment of the bill.
[The prepared statement of Mr. Petruccelli follows:]
Statement of Paul J. Petruccelli, Chief Marketing Counsel, Kraft Foods
North America
Mr. Chairman, and distinguished Members of the Committee:
My name is Paul Petruccelli, and I am Chief Marketing Counsel for
KraftFoods North America. Before joining Kraft, I spent thirteen years
as anattorney for the Federal Trade Commission's Bureau of Consumer
Protection,in Washington, D.C. I am grateful to the Committee for
extending to Kraftan invitation to testify regarding the importance of
the proposed ProductPackaging Protection Act of 2001. Kraft Foods is
the largest branded food and beverage company headquartered in the
United States and the second largest worldwide. We market some of the
best-known and best-loved food products in this country, including
Kraft Macaroni `N Cheese, Post Cereals, Kool-Aid Soft Drinks, Nabisco
Cookies and Crackers, and Kraft Cheese, to name only a very few. We
maintain more than 80 manufacturing and processing facilities in the
United States, and our products can be found in a pantry, refrigerator
or freezer in virtually every home in the land.
Overview of the Problem
Kraft Foods has spent decades building consumer trust in its brands
and in the product quality that they represent. As a producer of high
quality foods with an exceptional reputation to protect, Kraft is
increasingly concerned about reports from consumers across the country
who have found offensive messages and other unauthorized materials in
packages of our products. We have received approximately 80 consumer
reports of such incidents since 1997. To date in 2001, we have received
a total of 15 such reports, putting us on a pace to receive perhaps 25
complaints from consumers this year alone. These figures do not include
any reports that may have been received by our recently-acquired
Nabisco businesses.
In reviewing these unauthorized print materials, we have seen
material of all manner and description, much of it quite distasteful.
While I did not think it appropriate to distribute or quote from these
materials, permit me to give you a flavor for some of the reports we
have received from consumers:
A consumer from Massachusetts found a pornographic
drawing inserted into a box of JELL-O pudding.
A California consumer opened a box of MINUTE rice and
found a swastika and related literature of a racist nature.
Another California consumer discovered racist comments
upon opening a box of ALPHA BITS cereal.
Consumers in Maine and New Jersey found religious
messages in OSCAR MAYER LUNCHABLES Fun-Packs and POST Shredded
Wheat.
A Pennsylvania consumer discovered an anti-meat
brochure inside the box of a DIGIORNO frozen pizza.
A Vermont consumer complained that a package of HANDI-
SNACKS crackers had a health-related warning hand-written on
the outside of the box.
Of course, these are just a few examples of the problem; other
product--manufacturers could undoubtedly offer many more, and so could
Kraft.This recitation of tampering examples is of necessity somewhat
bland. It--does not begin to describe the ugly, hateful nature of some
of these--materials, nor can I adequately capture the emotional and
psychological--impact that discovering these materials frequently has
upon consumers. As--we are the consumer's natural contact point, they
often call us in an--extremely agitated state after being assaulted by
these materials. In some--instances, the consumer's young child has
discovered some racist, or--sexist, or anti-gay message, and the
consumer may be distraught at the--prospect of having to explain to a
young child about the presence of the--uglier elements of our society.
Aside from the emotional impact of these incidents, the affected
consumers--rightly conclude that the product they purchased has been
tampered with.--Their first instinct often is to blame the
manufacturer--Kraft Foods--despite our assurances that we are not the
source of the offending material--and our efforts to persuade them that
the material must have been inserted--into the package after it left
our control. Even those consumers who are--somewhat mollified by our
explanations may have lost a degree of trust in--Kraft that we can
never recapture. Of course, we have no way of knowing how--many
customers and how much consumer trust we may lose from what are--
undoubtedly the many consumers who encounter these materials upon
opening--one of our packages, but never call to report the incident to
us. This harm--to our business is quite simply incalculable.
When we began to receive these types of reports from consumers, we
did what--any responsible company would do. We pursued investigations
to determine--whether it was possible that the material was being
inserted by our own--employees. Over a period of time, however, we have
seen that the same--messages may appear in cereal boxes produced at
different manufacturing--facilities, or that messages of a certain type
tend to appear and reappear--in a particular geographical region. These
factors have generally led us to--conclude that the unauthorized
material is inserted into or placed on the--package after it has left
our control.
As these incidents began to proliferate, we turned to law
enforcement--authorities at both the Federal Bureau of Investigation
and the FDA's--Office of Criminal Investigation and requested that they
prosecute this--activity. Unfortunately, neither agency believes that
it has current--authority to prosecute such cases under the Federal
Anti-Tampering statute--(18 U.S.C. 1365). As a result, both agencies
have declined to investigate--the incidents we have presented to them.
Tampering Harms Consumers, Manufacturers and Retailers
These incidents of tampering amount to product hijacking, and
cause--significant injury to consumers, manufacturers and stores alike.
Consumers--may be emotionally harmed simply as a result of being
accosted by some of--this literature. A child may be traumatized by
exposure to inappropriate--material; adults may be offended by the
presentation of particular--religious beliefs or by exhortations to
take action against various racial--groups or other minorities.
Manufacturers and retailers, of course, may be injured by the loss
of--consumer confidence and potential business that ensues from such
an--incident. In this regard, it bears emphasis that reported
complaints to a--company always underestimate the size of a problem
that consumers may be--having--typically by a factor of tenfold or
more. In addition, each--affected consumer may report the incident to
relatives, friends, associates--at work, and so on. The injury to the
reputation of a retail store, or to--the producer of the affected
product, is incalculable and, in our view, grievous.
The Current Anti-Tampering Statute Is Not Effective
As you know, Congress passed the Federal Anti-Tampering Act in 1994
to--protect consumers from the dangers of using products whose contents
or--labels had been tampered with. In doing so, Congress sought not
only to--guard against the physical health risks that could result from
such--tampering, but also to prevent the adverse impact that the
tampering would--have on consumer confidence in the integrity of
products and their--packaging.
The Act generally makes it unlawful for individuals to tamper with
consumer--products, their packages or labels with reckless disregard
for the dangers--that could befall another person. In addition, the Act
provides for--criminal penalties for individuals who tamper with these
products, packages--or labels with the intent to injure a business. The
Act states, in--pertinent part:
Whoever, with intent to cause serious injury to the business of
any person,--taints any consumer product or renders materially
false or misleading the--labeling of, or container for, a
consumer product, if such consumer product--affects interstate
or foreign commerce, shall be fined under this title or--
imprisoned not more than three years, or both.
Unfortunately, several elements of the current Federal Anti-
Tampering Act--render it ineffective to prevent the harm that has come
to consumers,--manufacturers and sellers of consumer goods as a result
of individuals--tampering with product packages and labels in the
manner I have described.
First, Section 1365(b) of the Act requires that a person have ``the
intent--to cause serious injury to the business of any person'' in
order to be--convicted. Intent to cause harm to one particular business
would be--difficult for a federal prosecutor to prove, especially in
cases where--messages are placed in the products of several
manufacturers and in several--grocery stores. Moreover, the Act does
not cover the unfortunate situations--in which an individual tampers
with a product and causes a non-physical--trauma.
Second, the Act requires that the messages added to the packaging
either--``taint'' the product itself or render its labeling false or
misleading.--Since neither of these tests is typically satisfied in the
cases involving--the insertion of unauthorized materials, this
requirement effectively--thwarts law enforcement against some highly
abusive tampering incidents.
These two requirements in section 1365(b) give the Act a very
narrow scope--and, as a result, many instances of product tampering
have fallen through--the cracks. To more effectively protect consumers
against this additional--form of product tampering, we believe the Act
must be amended to explicitly--address the conduct in question.
The Product Packaging Protection Act of 2001 Would Benefit
Consumers andManufacturers
The Product Packaging Protection Act of 2001 would address the
limitations--of the current statute by inserting the following
subsection:
Whoever, without the consent of the manufacturer, retailer, or
authorizeddistributor, intentionally tampers with a consumer
product that is sold ininterstate or foreign commerce by
knowingly placing or inserting anywriting in the consumer
product, or the container for the consumer product,before the
sale of the consumer product to any consumer shall be
finedunder this title, imprisoned not more than three years, or
both.
The bill would also clarify that a "writing" includes any form
ofrepresentation or communication.
This new language would provide the Federal government with the
authorityit needs to more effectively protect consumers against
individuals whoinsert hateful, offensive, misleading, or simply
unauthorized messages orpictures into the packages of consumer
products. Without such protection,the current outbreak of unauthorized
materials that have been found inpackages of consumer products across
the country will continue unabated.Indeed, we are fearful that the
practice may increase, as those with aparticular axe to grind may
become increasingly emboldened by theirunchecked successes.
While fully supportive of the bill, we would like to suggest a
modification to improve its effectiveness. We would recommend that the
subcommittee insert the phrase ``or on'' to the bill, so that it would
address the practice of ``knowingly placing or inserting any writing in
the consumerproduct, or in or on the container for the consumer
product. . . .'' (emphasized language would be new). In our experience,
there have been a number of instances in which individuals have used
our packages to communicate their messages simply by writing or
stamping their views on the box, and we believe this conduct should be
prohibited as well. Moreover, we are fearful that a statutory change
that is limited to those materials placed into the package will simply
encourage these individuals to more aggressively use the outside of the
package itself as a billboard for their inappropriate communications.
Mr. Chairman, the Product Packaging Protection Act of 2001 could
help us address this problem in a manner that is narrowly tailored to
address the sort of harm we have been seeing in the past few years, and
prevent these product tamperers from commandeering a cereal box as
their personal soapbox. For this reason, on behalf of Kraft Foods, I
respectfully urge enactment of the bill.
Thank you once again for the opportunity to speak to you this
afternoon. Ilook forward to your questions.
Chairman Kohl. We thank you, Mr. Petruccelli.
Now, Ms. Leslie Sarasin.
STATEMENT OF LESLIE SARASIN, PRESIDENT AND CHIEF EXECUTIVE
OFFICER, AMERICAN FROZEN FOOD INSTITUTE, MCLEAN, VIRGINIA
Ms. Sarasin. Thank you, sir. Thank you, Chairman Kohl and
Senator DeWine. I am Leslie Sarasin. I am president and CEO of
the American Frozen Food Institute. I commend you on your work
on this very important issue to the food industry and certainly
appreciate the opportunity to speak today at this hearing.
The American Frozen Food Institute, known as AFFI, is the
national trade association that represents some 550 companies
who are responsible for approximately 90 percent of the frozen
food processed and sold annually in the United States, valued
at approximately $60 billion. AFFI's members manufacture,
freeze, and market products ranging from juice and branded and
private label frozen vegetables to brand-name pizzas, entrees,
meals, and gourmet desserts. As the representative of these
manufacturers, AFFI is concerned with the recent incidents of
offensive messages being placed in and on the packages of
consumer products across the country.
In recent years, there have been numerous reports from
companies in the food industry of consumer complaints regarding
offensive materials that consumers have found attached to or
inserted in the packages of a variety of consumer products,
including frozen foods. It is believed this tampering activity
occurred while the products were on store shelves. Often, the
offensive materials are inserted within the product packaging
so that consumers are not aware of them until they open the
products at home. In other instances, offensive or misleading
stickers or labels have been affixed to product packaging in
the store.
The materials found inside product packages are extremely
offensive, often containing pornography and messages of hate
and encouraging violence against members of various ethnic,
religious, or cultural groups. In instances in which consumers
have discovered labels placed on packages by third parties, the
text of these labels was either related to the product inside
the packaging or another consumer product. As a result, many
consumers mistakenly believe the manufacturer had supplied the
messages.
AFFI believes individuals should not be allowed to place
such stickers on commercial products, since the tampering may
detrimentally affect the confidence consumers have in the
underlying product. For example, a consumer may open a frozen
entree package and find a piece of paper containing hateful
language and offensive graphic images. The consumer likely
would lose trust in the manufacturer of the product and be wary
of purchasing the same product or even products by the same
manufacturer in the future. This loss of consumer confidence is
possible, even if the tampering does not affect the product
within the package or the product's labeling.
Consumers assume the manufacturer is responsible for the
entire product packaging. Finding materials in or on the
packaging, therefore, likely will cause consumers to lose
confidence in the safety of the actual product and int
manufacturers safety precautions generally. Similarly,
consumers may lose confidence in the store in which the product
was purchased. For companies dependent on consumer patronage,
development of consumer confidence in the companies' products
or services is critical.
Without the protection offered in S. 1233, AFFI believes
these recent incidents of tampering will continue--further
jeopardizing consumer privacy and consumer confidence in
manufacturers and retailers.
Some concern has been expressed that S. 1233 might impose
too severe penalties and that these penalties may be used
against, for example, a child who affixes a cartoon sticker
onto a product in a store. AFFI members are comfortable that
Congress is creating a sufficient record, as a result of this
hearing and the hearing held recently in the House of
Representatives on H.R. 2621, to demonstrate that the intent of
this legislation is to identify and punish those who abuse a
private consumer product transaction to invade the privacy of a
consumer's home with their message. Where such an invasion is
particularly offensive, it warrants prosecution; an incidental
or innocuous invasion doe not.
I would note that AFFI endorses the Senate bill with regard
to the nature of the penalty. I would ask this committee to
recognize that both the 3-year sentence and the fines related
to violations of the act are minimums and not maximums.
Therefore, prosecutors and courts retain a great deal of
discretion in determining the incidents that merit prosecution
and how best to sentence those who are convicted.
Given the potentially traumatic effect on consumers and
businesses of these abusive incidents, I respectfully submit
that prosecutors and courts should be allowed latitude to
punish those who do so as felons.
Moreover, AFFI supports the provision contained in the
House bill that prohibits placing materials in or on consumer
products. AFFI believes this provision is significant, since
misleading materials affixed to product packaging may just as
significantly affect consumer confidence as those inserted in
packaging.
We believe S. 1233 will provide a very effective tool to
combat these incidents of consumer product tampering. The bill
has been drafted in a way that would provide increased
protection to consumers, manufacturers and retailers from the
effects of tampering
Thank you for this opportunity to appear today. I would be
happy to answer any questions you may have.
[The prepared statement of Ms. Sarasin follows:]
Statement of Leslie G. Sarasin, CAE President and Chief Executive
Officer, American Frozen Food Institute, McLean, Virginia
Thank you, Chairman Kohl and members of the Committee. I am Leslie
Sarasin, president and chief executive officer of the American Frozen
Food Institute of McLean, Virginia. AFFI is the national trade
association that represents frozen food processors, marketers and
suppliers to the industry. AFFI's membership of 550 companies is
responsible for approximately 90 percent of the frozen food processed
annually in the United States, valued at approximately $60 billion. We
appreciate the opportunity to appear before the Subcommittee today to
discuss the issue of tampering with consumer products, specifically S.
1233, the ``Product Packaging Protection Act of 2001.'' AFFI's members
manufacture, freeze and market products ranging from juice and branded
and private label vegetables, to brand-name pizza, entrees, meals and
gourmet desserts. As a representative of these manufacturers, AFFI is
very concerned with the recent incidents of offensive messages being
placed in and on the packages of consumer products across the country.
Overview
In 1994, Congress passed the Federal Anti-Tampering Act \1\ (the
``Act'') to protect consumers from the dangers of using products whose
content or labels had been tampered with. The Act was intended to
safeguard consumers from physical health risks related to such
tampering and to protect consumer confidence in commercial products.
While the 1994 Act has effectively addressed certain incidents of
tampering with consumer products, there are still gaps in the law that
fail to address the recent nationwide outbreak of tampering with
product packages and labels. The Product Packaging Protection Act of
2001 aims to fill-in these gaps in the law.
---------------------------------------------------------------------------
\1\ 18 U.S.C. Sec. 1365 (2001).
---------------------------------------------------------------------------
Offensive and Misleading Materials Have Been Inserted in and Placed on
Product Packages
In recent years, there have been a number of reports from companies
of consumer complaints regarding offensive materials that consumers
have found attached to, or inserted in the packages of a variety of
consumer products, such as cereal and frozen foods. The companies who
have received these reports and law enforcement authorities believe
that this offensive tampering activity occurred while the products were
on store shelves. Often the offensive materials are inserted within the
product packaging so that consumers are not aware of them until they
open the products at home. In other instances, offensive or misleading
stickers or labels have been affixed onto product packaging in the
store affecting consumer confidence and willingness to purchase the
product.
The materials found inside of product packages are often extremely
offensive. Many materials contain messages of hate and encourage
violence against members of various ethnic, religious, or cultural
groups. The images in these materials are offensive and shocking to
many adults and would traumatize most children. For example:
One message suggests that a well-know film director be murdered
because of the content of his work. A telephone, address, and
website is provided.
Other messages promoted Nazi causes.
Several other messages advocated genocide against religious and
ethnic minorities.
In addition to these patently offensive messages, some consumers
have discovered labels placed onto packages by third parties. Since the
text of these labels was either related to the product inside the
packaging or another consumer product, many consumers mistakenly
believed that the manufacturer supplies the messages. On some products,
stickers were attached that stated that the products could pose serious
health and environmental risks. People should not be allowed to place
such stickers on commercial products without the knowledge and consent
of manufacturers or others involved in the commercial distribution of
the product since the tampering may detrimentally affect the confidence
consumers have in the underlying product.
Tampering Hurts Consumers, Manufacturers and Retailers
Incidents of tampering jeopardize the critical relationship between
manufacturers of consumer products and their customers. Furthermore,
the effects of tampering incidents can be harmful to consumers,
manufacturers, and stores.
For example a consumer may open a frozen entre package and find a
piece of paper containing hateful language and offensive graphic
images. The consumer would likely lose trust in the manufacturer of the
product and be wary of purchasing their products in the future. This
loss of consumer confidence is possible even if the tampering does not
affect the product within the package or the product's labeling.
Consumers assume that the manufacturer is responsible for the entire
product packaging, finding materials inserted in or on the packaging
may cause consumers to lose confidence in the safety of the actual
product and in the manufacturer's safety precautions generally. The
simple fact that a product was tampered with at any level, even with
materials unrelated to the product itself, might cause consumers to
question the overall product safety and jeopardize their continuing
relationship with the manufacturer. Similarly, the consumer may lose
confidence in the store where the product was purchased. They may feel
that the store management did not take sufficient precautions either in
purchasing its inventory from manufacturers or in safeguarding the
products on its store shelves. For companies dependent on consumer
patronage, development of consumer confidence in the companies'
products or services is critical. Offensive materials in or on the
packaging of a product can irreparably harm the trust-relationship
between manufacturers or retailers, and consumers.
The Product Packaging Protection Act of 2001 Product Packaging
Protection Act of 2001 Would Benefit Consumers and Manufacturers
The Product Packaging Protection Act of 2001 would fill in gaps in
current law to more effectively protect consumers against individuals
who insert hateful, offensive or misleading messages or pictures into
or on the packages of consumer products. Without such protections these
recent incidents of tampering could continue and further jeopardize
consumer privacy and consumer confidence in product manufacturers and
retailers.
There has been some concern that the Product Packaging Protection
Act of 2001 might impose too severe penalties and that these penalties
may be used against, for example, a child who affixes a cartoon sticker
onto a product in a store. I think that Congress is creating a
sufficient legislative record as a result of this hearing and the
hearing held in the House of Representatives on H.R. 2621, the House
version of this bill, to demonstrate that the intent of this
legislation is to identify and punish those who abuse a private
consumer product transaction to invade the privacy of a consumer's home
with their message. Where such a trespass is particularly offensive, it
warrants prosecution. An incidental or innocuous trespass would not.
I would note that AFFI endorses the Senate bill with regard to the
nature of the penalty. I would ask this Committee to recognize that the
3-year sentence is a maximum and not a minimum, similarly the fines
related to violations of this act are expressed in terms of maximums
and not minimums. Therefore, prosecutors and courts retain a great deal
of discretion regarding which incidents to prosecute and how best to
sentence those who are convicted. Given the potentially traumatic
affect on consumers and businesses of these abusive incidents, we
respectfully submit that prosecutors and courts should be allowed
latitude to punish those who do so as felons.
AFFI, however, supports that part of the House bill that prohibits
placing materials ``in or on'' consumer products. The Senate bill does
not prohibit persons from placing materials on product packaging. This
provision is significant since misleading materials affixed to product
packaging may just as significantly affect consumer confidence as those
inserted in packaging. Furthermore, many of the materials affixed on
packages are designed to resemble the manufacturer or store labeling
and are therefore likely to be incorrectly attributed to these
companies by consumers. It would likely be no less shocking to a
consumer to find offensive materials on a package than within the
packaging itself, and the more these materials appear to be
``legitimate'', that is from the manufacturer or store, the more
misleading effects they can have. For that reason I would urge the
members of this Committee to consider including a prohibition of
tampering both in and on consumer products, as the House bill provides.
The Product Packaging Protection Act of 2001could be a very
effective tool to combat these incidents of consumer product tampering.
The bill has been drafted in a way that would provide increased
protection to consumers, manufacturers, and retailers from the effects
of tampering. In addition, the bill language in conjunction with a
clear legislative record will ensure that the law is used to address
the sort of harmful tampering we've seen in recent years. For these
reasons, I urge you on behalf of AFFI to support the Product Packaging
Protection Act of 2001.
Thank you for this opportunity to present the views of the American
Frozen Food Institute. I would be happy to answer any questions you may
have.
Chairman Kohl. Thank you, Ms. Sarasin.
Ms. Fisher, we will start with you. Do you see any
constitutional problems with this bill? Someone suggested that
the bill criminalizes political speech. We believe the bill is
constitutional because the illegal act is the insertion of the
material and not what is written on it.
Ms. Fisher. Well, the bill on its face is content neutral
and applies to any writing, not only political writing. So,
therefore, it does not, in our view, criminalize political
speech.
Chairman Kohl. OK. What does the Justice Department do to
make sure that statutes like these are applied in a way that
respects the First Amendment?
Ms. Fisher. Well, the Department enforces all laws, as they
are written on their face, and this one does not impinge on the
First Amendment. In addition, all Federal prosecutors take an
oath to uphold the Constitution and are required to apply laws
with regard to all individual's constitutional rights. In
addition to that, whenever new legislation comes out, there are
policy guidelines that come out with it that would highlight
any potential First Amendment issues.
Chairman Kohl. Thank you. Do you believe that statutes like
these will help to deter people from putting offensive material
in packages?
Ms. Fisher. We certainly hope so. It is likely that there
may not be a great number of cases brought under this statute,
but having a prosecution of an individual or a group of
individuals and the public notoriety surrounding that would
provide a significant deterrent, along with the significant
criminal penalties that go along with the activity.
Chairman Kohl. Some have suggested, Ms. Fisher, that
Congress should not legislate in this area, since Congress has
passed Federal product tampering laws in 1994. It is our
feeling that we are only improving the law or a law that
already exists and not legislating a new law. Would you see it
this way, also?
Ms. Fisher. Yes, we do. We would see this as a
supplementation of the existing law, the Federal Anti-Tampering
Act.
Chairman Kohl. OK. Thank you.
Mr. Burris, we thank you, first of all, for coming all the
way from Oregon to share your story with us. Hopefully, your
efforts will be rewarded with this passage of this legislation.
Mr. Burris, were you surprised to hear that there is no
Federal law that prohibits these acts?
Mr. Burris. I was really surprised. I thought there must be
something. I was just totally surprised there was not.
Chairman Kohl. OK. And has your experience changed your
behavior in any way when it comes to grocery shopping today?
Mr. Burris. It really does because I look at everything,
like I said earlier, I look at everything I buy because I do
not know. I mean, after this experience, I do not know what I
am going to face. I check everything out real closely.
Chairman Kohl. Do you go grocery shopping every week?
Mr. Burris. Yes. I do a lot of checking, after that
experience.
Chairman Kohl. Do you shop at one of the chain stores?
Mr. Burris. Yes, I shop at Safeway mostly.
Chairman Kohl. Safeway?
Mr. Burris. Right.
Chairman Kohl. OK. We will get back to you, if you would
like to make some additional comments.
Ms. Sarasin and Mr. Petruccelli, we have heard about many
incidents involving dry cereal boxes. Can you tell us what
other types of foods are most frequently targeted. Are there
some food products more susceptible to package tampering than
others?
Mr. Petruccelli. Well, I can tell you that we have seen the
problem on a variety of different products, not just cereal
boxes. For example, this was a JELL-O pudding, I believe, that
you had, Mr. Burris.
Mr. Burris. It was a strawberry cheesecake.
Mr. Petruccelli. A strawberry cheesecake.
We have seen it on Oscar Mayer Lunchables, we have seen it
on several of our JELL-O products, I believe a Capris Sun
product. I would have to sort of check my notes, Mr. Chairman,
but on a number of different products, as well as frozen
pizzas. We have had the problem on those products as well.
Chairman Kohl. Ms. Sarasin, do you have any comment on that
question?
Ms. Sarasin. Yes. We have seen a number of incidents on the
frozen side of the business, particularly as it relates to
frozen pizzas. As you, perhaps more than most in the Senate,
are aware, the nature of the packaging of frozen food products
probably contributes to these incidents. Because of the
perishable nature of the frozen food products, as you are
aware, most frozen food products are packaged internally and
then there is an external package around those to maintain the
integrity and quality of the product. Most of these incidents
appear to be situations in which the literature is inserted
into the outer package, which does not come into contact, of
course, with the inner food product because it is individually
wrapped inside.
It appears to me that perhaps the groups or the individuals
who are engaged in this activity understand very well what the
extent of the current Federal anti-tampering statute is, and
they understand very well that that type of behavior is not
prohibited by law. So they are pushing this sort of to the
extent they can under the current statute without fear of being
prosecuted.
Chairman Kohl. Mr. Petruccelli, Ms. Sarasin, one of the
most disturbing things about this behavior is what it does to
children. There is growing evidence that hate groups often
target children with their message. Do you have evidence that
children's products are being singled out, Mr. Petruccelli?
Mr. Petruccelli. I do not know whether I would say that
they are being singled out, Mr. Chairman. I would say that we
commonly have the problem with children's products. Alpha Bits
cereal, for example, has been the subject of this kind of
problem on a number of occasions, and, frankly, I have that
sort of nightmare vision of a little child who learns how to
spell Nazi by getting the information inside an Alpha Bits
cereal box. I guess I would like to try and avoid that if I
can.
Chairman Kohl. Ms. Sarasin?
Ms. Sarasin. You know, it is an interesting question
because I think the definition of what we have traditionally
called children's foods is probably changing. As we are all
aware, children are more and more involved in the decision-
making that is done when food purchases are made for the home.
I think the industry statistic we use now is that 50 percent of
frozen foods that are purchased in the home are influenced by
children in the household. So that, in conjunction with the
facts that so many children are at home alone after school
preparing their own snacks when they get home from school and
using the microwave to do it, and, fortunately, eating a lot of
frozen foods when they do that, I think increasingly we have
lots and lots of products that would be considered children's
foods because children are preparing them in record numbers.
So, yes, I think this definitely is influencing children's
food, perhaps as much or more than others.
Chairman Kohl. Mr. Petruccelli, few things can be more
frustrating for a company like Kraft than to have your good
name dragged into a situation of this sort. Can you give us an
idea about the effect that these incidents have had on Kraft's
brand name and tell us a little bit about what actions you have
taken to counteract any negative publicity.
Mr. Petruccelli. Well, I wish I could measure, in specific
terms, in dollar terms, what the potential impact is on Kraft's
brand names and Kraft's reputation, but I think it is the kind
of thing that is just too hard to calculate.
As I am sure you know, we spend millions of dollars a year
advertising our brands, advertising our products. We spend
millions of dollars trying to figure out how to make the
packages appealing to consumers. We do a great many things in
the community, contribute to the communities that we work in,
that we live in--all part of our efforts to be well thought of
as a corporate citizen, and this sort of thing just tears down
a lot of those efforts.
We can try to be comforting to someone like Mr. Burris when
they contact us and try to provide some free product to them
and, you know, indicate what we can about what the state of the
law is and how we think it may have happened, but it is very
difficult to get that corporate trust back once you start to
lose it with individual consumers.
Chairman Kohl. Ms. Sarasin, you mentioned in your written
testimony that this sort of tampering affects not only the way
consumers feel about the brand-name products, but also the
grocery store where they purchase their product. Can you tell
us a little bit about comments that you may have received from
grocery stores.
Ms. Sarasin. I do not have any specific anecdotes of
comments that we have received from grocery stores, but I think
it is important to note that among the groups that are very
much in support of passage of this legislation are the Food
Marketing Institute and the National Grocers Association, both
of which represent retailers all across the country who are on
the front line and experience this type of problem on a daily
basis.
Chairman Kohl. Mr. Petruccelli and Ms. Sarasin, Kraft and
many other companies have done a good job of cataloguing the
complaints about this activity. Do you think these reports are
just the tip of the iceberg? Do you believe that there are many
more incidents occurring than those we are aware of?
Mr. Petruccelli. Yes, Mr. Chairman. I always believed that
there are many more incidents occurring than those that we are
aware of. The statistic that is commonly used by consumer
affairs professionals is that every complaint represents, at
best, 10 percent of the number of consumers who are actually
affected by the problem, sometimes a much smaller percentage
but, at best, 10 percent. So there were would certainly be many
more consumers who are experiencing this kind of affront, but
not reporting it to us.
Chairman Kohl. Ms. Sarasin, do you believe that this is a
national issue?
Ms. Sarasin. Certainly I do. And I think, as I mentioned in
my previous response, the support of national trade
associations, in addition to the organizations that represent
retailers all over the country, I am aware that there are some
half-dozen or so other national trade associations that support
this legislation that represent much broader categories than
the frozen category, as well as niche organizations that
represent the baking industry. So I would say, yes, this is
very much of concern to national constituencies.
Chairman Kohl. Thank you.
When we have been asked about why are Federal laws needed
in this area, we have answered that Congress has chosen to
legislate in product tampering law. This bill simply makes a
small amendment to the criminal code. Do you have any problems
with the way in which we are going about this?
Ms. Sarasin. Are you asking me?
No, I do not have any problems with the way you are going
about it. I think the issue that I mentioned, both in my
written testimony and the verbal testimony of the ``in or on''
the packaging issue is one that we believe is very significant,
and it is our hope that you will take another look at that and
consider incorporating any types of stamps or stickers or other
things that are affixed to the outside of the package, as well
as that that is included in the package because we believe that
the things that are on the outside of the package are no less
offensive than those that are inside the package, and perhaps
maybe even more offensive because more people see them if they
are sitting on a supermarket shelf.
Chairman Kohl. That is true.
Ms. Sarasin. So I think that would be our No. 1 issue.
Chairman Kohl. OK. Does anybody else have comments you
would like to make before I begin to draw this hearing to a
close?
Ms. Fisher, Mr. Burris, anything you would like to say?
Ms. Fisher. No, Senator. Thank you.
Mr. Burris. No, I am fine.
Chairman Kohl. We have received several important letters
supporting this bill. We would like to insert into the record a
letter of support from the Anti-Defamation League, one from
General Mills, one from Kellogg's and another signed by a
number of companies, including Kraft Foods, the American Bakers
Association, the American Frozen Food Institute, Food
Distributors International, the Food Marketing Institute,
General Mills, the Grocery Manufacturers of America, the
Independent Bakers Association, and the National Food
Processors Association, Kellogg's, and the National Frozen
Pizza Institute. We thank all of them, and we will make their
letters a part of the hearing record.
Chairman Kohl. If there are no further questions, we want
to thank all of the witnesses for your testimony. It has been a
very important hearing, in my judgment, and this has been very
informative. It will help us a lot as we go about turning this
into real-life legislation that we hope to get done within
several months.
We thank you all for coming, and this hearing is closed.
[Whereupon, at 2:46 p.m., the subcommittee was adjourned.]
[Submissions for the record follow.]
SUBMISSIONS FOR THE RECORD
August 1, 2001
The Hon. Herb Kohl, Chairman
Subcommittee on Antitrust, Business
Rights, and Competition
Committee on the Judiciary
U.S. Senate
Washington, DC 20510
Dear Chairman Kohl:
Thank you for your recent introduction of S. 1233, the Product
Package Protection Act of 2001, that would prohibit unauthorized
writings in consumer products. We also greatly appreciate the expressed
support of Senators Hatch, Leahy, DeWine and Durbin through their co-
sponsorship of this important measure.
In recent years consumers have complained of neo-nazi and hate
literature, pornographic pictures, and other offensive and unauthorized
materials being attached to, or included in, various consumer products.
Typically these offensive materials are tightly folded and slipped into
consumer products that have box packaging with an inner wrapper. When
the consumer opens the box, these offensive messages are the first
thing he or she sees. What is most troubling is that so often these
messages are found in or on consumer products used by children, such as
cereal boxes.
Unfortunately, no Federal law exists to stop these alarming
practices. Because the papers and materials do not physically touch the
food product, it is not a violation of the Federal Anti-Tampering Act.
S. 1233 would make such activities a Federal crime, and would amend the
Federal Anti-Tampering Act by making it a felony for any person to
stamp, print, place, or insert any writing in any consumer product or
the box, package, or other container for the product, prior to its sale
to any consumer. Because S. 1233 does not prohibit persons from placing
materials on product packaging, we also ask that the bill prohibit
tampering both ``in and on'' consumer products. We also understand the
bill is intended to exempt writings and markings made by a product
manufacturer, retailer, or distributor of the product in the due course
of business for promotional or sales purposes. A person convicted under
the Act would be fined and/or imprisoned for not more than three years.
We appreciate your continued support for S. 1233, and urge its
swift consideration.
American Bakers Association
Food Distributors International
General Mills
Independent Bakers Association
Kraft Foods
National Frozen Pizza Institute
American Frozen Food Institute
Food Marketing Institute
Grocery Manufacturers of American
Kellogg's
National Food Processors Association
Statement of Gilbert Lee Sandler, American Free Trade Association,
Miami, Florida
The Product Packaging Protection Act of 2001 (S. 1233) has been
drafted to address legitimate concerns of food manufacturers that have
arisen due to the unauthorized insertion of inflammatory written
materials in branded products prior to delivery to the ultimate
consumers. AFTA endorses the intent of this legislation and is
supportive of the House version of this bill (H.R. 2621), introduced on
July 25, 2001. However, the differences between H.R. 2621 and S. 1233
concern the members of AFTA, who believe that the laudatory intentions
of the legislation are compromised by the Senate version of the bill.
The Senate version would appear to prohibit many legitimate
activities that currently play a critical role in fostering growth and
competition in the American marketplace and benefit U.S. consumers. In
addition, contrary to its stated intent, the current version of the
Senate bill appears to actually allow certain entities to place any
type of writings in or on goods or packaging without limitation or
prohibition. Accordingly, because AFTA supports legislation that would
punish the unacceptable insertion of offensive materials in products
offered to U.S. consumers, it recommends that S. 1233 be amended to
conform to H.R. 2621.
In that regard, the American Free Trade Association offers the
following suggested amendments to S. 1233, as introduced. These
amendments would conform S. 1233 to the House version of the bill, H.R.
2621, and would, therefore, strengthen the legislation by prohibiting
unlawful conduct while still protecting commercial activities that are
common, and desirable, within the U.S. marketplace.
First, the language currently in H.R. 2621 that prohibits anyone
from inserting offensive writings in consumer goods but which,
nevertheless, protects common, necessary and lawful business activities
should be added to S. 1233.
Second, the term ``Authorized distributors'' used in the bill
should be amended to ``Distributors'' so that legitimate sales and
promotional activities are protected without discrimination.
The following discussion highlights AFTA's concerns regarding S.
1233:
Activities of all Product Distributors Should Remain Legal
Both H.R. 2621 and S. 1233 intend to prohibit the placement of
offensive writings in or on products or product packaging. However,
because what may be offensive to one person may not be to another, and
to address constitutional free speech concerns, the definition of
prohibited ``writings'' in both bills is necessarily broad and would
include seemingly innocuous activities such as placing coupons in
boxes, adding warranties or marking ``two for one'' on a promotional
box. ``Writings,'' under the current definition, could even include
stickers placed on boxes to indicate correct weight measurements under
FDA regulations. While AFTA understands and appreciates the need for
such a broad definition of prohibitive writings, it believes that it is
critical that the legislation protect legitimate forms of business
practices that may, inadvertently, fall within the prohibitions set
forth in this legislation. Accordingly, S. 1233 should be amended so
that these activities of all product distributors remain legal.
S 1233 should include language prohibiting the insertion of offensive
materials by anyone
H.R. 2621 prohibits writings placed in or on products or packages
without the consent of the manufacturer, retailer or distributor in the
normal course of business for promotional or sales purposes. However,
S. 1233 prohibits the placement of writings without the consent of the
manufacturer, retailer or ``authorized'' distributor and relieves these
parties from liability under the Act in all circumstances. We believe
that the language in S. 1233 should be identical to that language
contained in the House version of the bill in order to prohibit the
undesirable behavior completely, regardless of who commits the crime.
In its present form, for example, S. 1233 provides no recourse against
the retailer who may believe that it has the right to insert neo-Nazi
literature in product boxes on its shelves. So long as the retailer,
manufacturer or authorized distributor consents to the placement of a
prohibited writing, S. 1233 appears to permit such an action. This
would seem to be contrary to the intention of the legislation.
S 1233 should include language protecting litimate business practices
of all product distributors
The exemption made for acceptable business practices set forth in
H.R. 2621 makes no distinction between an ``authorized'' distributor
and all other product distributors because it exempts legitimate
business activities that are often required by law or commercial
reality. The fact is that all distributors may need to insert some
writings in or on products prior to sale to the consumer. For example,
distributors may place coupons in packages or disclaimers on
containers; they may add special warranties or promotional tie-ins of
one product purchased with another. Distributors may elect to stamp
products with ``Reduced Cost'' labels or ``Two for One'' tags and may
include customized warranties to customers. Distributors may, in fact,
combine a shaver with shaving cream and repackage the combination
promotional product to indicate proper content, weight and trademark
information as required under existing law. Legitimate repackaging and
promotional activities are conducted by both distributors
``authorized'' by the manufacturers to initially sell the products and
those distributors that subsequently sell the goods through the
discount marketplace. Regardless of who performs this legitimate
business activity, the prohibitions set forth in this legislation
should not apply. Rather, the legislation should be amended to clearly
prohibit certain activities, without concern to who performs them.
Accordingly, S. 1233 should be amended so that legitimate business
practices of all product distributors, whether or not ``authorized'' as
such initially by the product's manufacturer, are protected.
Background Information on the American Free Trade Association
The American Free Trade Association (AFTA) is a not-for-profit
trade association of independent American importers, distributors,
retailers and wholesalers, dedicated to preservation of the parallel
market to assure competitive pricing and distribution of genuine and
legitimate brand-name goods for American consumers. The parallel market
embraces a broad range of products but AFTA's members are primarily
involved in sale and distribution of fragrances, colognes, health and
beauty aids (e.g. shampoo, soap, etc.). AFTA has been an active
advocate of parallel market interests for over fifteen years. It has
appeared as amicus curiae in the two leading Supreme court cases
affirming the legality of parallel market trade under the federal
trademark, customs and copyright acts (the 1985 Kmart case and the 1998
Quality King case) and in numerous lower court decisions.
AFTA's members distribute brand name products, pursuant to U.S.
laws and regulations, in connection with which the manufacturer has
already made its initial sale and profit. In this way, American
consumers are provided with greater access to luxury goods and the
benefits of a truly competitive marketplace. However, as
``unauthorized'' distributors, AFTA's members would not be exempted
from the prohibitions contained within S. 1233 as drafted.
Anti-Defamation League
New York, NY 10017
July 31, 2001
The Hon. Herber H. Kohl
U.S. Senate
Washington, D.C. 20510
Dear Senator Kohl:
We write in support of S. 1233, the Product Packaging Protection
Act of 2001, legislation you have introduced along with Senators Hatch,
Leahy, DeWine and Durbin.
The Anti-Defamation League is a civil rights and human relations
agency with over 80 years of experience confronting extremist and hate
group activity. We have supported similar consumer protection
legislation in California, because we believe there should be
consequences for this kind of product tampering by extremists and hate-
mongers.
We strongly believe the proposed legislation raises no First
Amendment issues. The First Amendment does not give individuals the
right to hijack people's property for use as a vehicle for their own
opinions. The Constitution does not require citizens to be subjected to
read racist and anti-Semitic materials in their own homes against their
will. As an organization, ADL is firmly committed to the idea that the
best way to fight hate speech is with more speech. That does not mean,
however, that we believe that this kind of vandalism should be
countenanced under the banner of free speech.
We urge the Committee to act favorably on this legislation.
Sincerely,
Glen A. Tobias
National Chairman
Abraham H. Foxman
National Director
Statement of Hon. Richard J. Durbin, A U.S. Senator from the State of
Illinois
Thank you, Mr. Chairman. Before I begin, I want to acknowledge and
thank Paul Petruccelli, who is testifying on behalf of Kraft Foods
North America, Inc., which is based in Northfield, Illinois. Kraft has
been a leader in the effort to address this important issue.
I am pleased to join Senator Kohl as an original cosponsor of the
Product Package Protection Act of 2001. In the past several years,
consumers have been discovering offensive and highly provocative
material in products they purchase at retail stores and supermarkets.
When consumers and food manufacturers report these incidents to
authorities, however, the government was unable to do anything about
it. That is because under our current laws, neither the Federal Bureau
of Investigation nor the Food and Drug Administration has the authority
to prosecute these incidents under the Federal Anti-Tampering Act.
Hatmongers who choose to tamper with consumer products should not
be permitted to engage in this activity with impunity. One of the
leaflets that was inserted into a consumer product read ``IF IT AIN'T
WHITE. . .WASTE IT.'' The graphic leaflet depicted a person of color
being shot. Imagine for a moment a small child opening up a box of
cereal at the breakfast table and finding this leaflet. This is not a
scenario any parent wishes to encounter--but it is one that many
parents undoubtedly have faced over the past few years.
With the new legislation we introduced recently, hate groups will
find that when they tamper with consumer packaging, they will be
tampering with the law. We are providing law enforcement officials the
tools they need to go after individuals who choose to hide behind
consumer packaging to convey their hateful messages. The bill includes
a common sense exception for writings and markings made by product
manufacturers, retailers, and distributors of consumer products in the
course of business and for promotional and sales purpose.
This legislation has already been marked-up and reported favorably
by a House Judiciary Subcommittee. I hope that the Senate will move
swiftly to enact this important legislation.
General Mills, Inc.
Minneapolis, Minnesota
July 30, 2001
Senator Herb Kohl, Chairman
Antitrust, Business Rights, and Competition Subcommittee
Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, D.C. 20510
Dear Senator Kohl,
On behalf of General Mills, I am writing to express strong support
for S.1233, legislation to amend the Federal Anti-tampering Act. This
bill makes it a felony for any person to stamp, print, place, or insert
any writing in or on any consumer products or the box, package or other
container for the product, prior to its sale to any consumer.
General Mills receives 20 to 25 consumers complaints a year on
matters relating to unauthorized, and often highly offensive, material
inserted into or attached to our product boxes.
After investigation, we have determined that this material has been
placed in or on our product boxes after they have left our control,
most often once the product is on the store shelf. The material often
espouses a variety of racist and other cause-related positions.
Consumers, like all of us, are understandably angry and upset,
particularly when it is their children who have opened the package.
We have approached federal law enforcement authorities, both the
FBI and the FDA's Office of Criminal Investigation, to request that
they investigate and prosecute this activity. Unfortunately, neither
agency believes it has authority to prosecute under 18 U.S.C. 1365 and
both have declined to investigate these incidents. Although California
and New Jersey have adopted measures making this activity a crime,
there remains an enormous gap at the federal level to appropriately
punish those that commit these acts.
We appreciate your leadership in addressing this important issue as
all of us work to protect the rights of consumers and consumer product
companies from the activity. Please do not hesitate to contact me
should you have any questions.
Sincerely,
Austin P. Sullivan, Jr.
Senior Vice President
Kellogg Company
Battle Creek, Michigan, 49016-3599
July 31, 2001
The Hon. Herbert H. Kohl
U.S. Senate
Committee on Antitrust, Business Rights, and Competition
Disksen Senate Office Building 224
Washington, DC 20510
Dear Chairman Kohl:
We ask you to support S. 1233, legislation which would criminalize
printed matter from being inserted into our products and packaging.
Kellogg Company is a food manufacturer of products including
breakfast cereals, Kellogg's' Eggo' frozen
waffles, Pop-Tarts' and Nutri-Grain' Bars, as
well as Keebler cookies and crackers. Over the last few years, we have
had some incidents whereby our packages were violated. Although this
type of tampering appears not to be intended to affect the integrity of
the food, it is still alarming to our consumers who rely on our
packaging to protect the products they feed their families.
In 1994, Congress passed the Federal Anti-Tampering Act to protect
consumers from the dangers of using products whose content or labels
had been tampered with. The Act was intended to safeguard consumers
from physical health risks related to such tampering and to protect
consumer confidence in commercial products. While the 1994 Act has
effectively addressed certain incidents of tampering with consumer
products, there are still gaps in the law that fail to address the
recent nationwide outbreak of tampering with product packages and
labels. The Consumer Product Protection Act of 2001 aims to fill-in
these gaps in the law.
Incidents of tampering jeopardize the critical relationship between
manufacturers of consumer products and their customers. Furthermore,
the effects of tampering incidents can be harmful to consumers,
manufacturers, and stores.
For example, a consumer may open a package and find a piece of
paper containing hateful language and offensive graphic images. The
consumer would likely lose trust in the manufacturer of the product and
be wary of purchasing their products in the future. This loss of
consumer confidence is possible even if the tampering does not affect
the product within the package or the product's labeling. Consumers
assume that the manufacturer is responsible for the entire product
packaging, finding materials inserted in or on the packaging may cause
consumers to lose confidence in the safety of the actual product and in
the manufacturer's safety precautions generally. The simple fact that a
product was tampered with at any level, even with materials unrelated
to the product itself, might cause consumers to question the overall
product safety and jeopardize their continuing relationship with the
manufacturer. Similarly, the consumer may lose confidence in the store
where the product was purchased. They may feel that the store
management did not take sufficient precautions either in purchasing its
inventory from manufacturers or in safeguarding the products on its
store shelves. For companies dependent on consumer patronage,
development of consumer confidence in the companies' products or
services is critical. Offensive materials in or on the packaging of a
product can irreparably harm the trust-relationship between
manufacturers or retailers, and consumers.
We urge you to support S. 1233.
Sincerely,
George A. Franklin
-