76 USE OF ADDITIVES IN CONFECTIONERY

GOVERNMENT-------- -----

Storage

H E A R I N G

BEFORE TH E

SUBCOMMITTEE ON PUBLIC HEAL TH 

AND SAFETY

OF TH E

COMMITTEE ON

INTERS TAT E AND FOR EIGN COMMERCE 

HOUSE OF REPRESENTATIV ES

EIGH TY -EIG HT H CONGRESS

SECOND SESSION

H.R. 4731

A BILL TO AMEND SECTION 402(d) OF THE FEDERAL 

FOOD, DRUG, AND COSMETIC ACT

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JO H N BELL W IL LI AM S, Miss issip pi

K EN N ETH A. RO BE RT S, Alaba ma

HARLE Y O. ST AG GE RS , W es t V irgi ni a

W ALTE R RO GE RS, Tex as

SA MUEL N. FR IE D E L , M ar yl an d

TO RBERT H. MACDO NAL D, M as sa ch use tts

JO H N JARM AN , Oklah om a

LE O W. O’BR IE N, New York

JO H N E. MOSS, C al if or ni a

JO H N D. DI NG EL L, Michiga n

PA U L G. RO GE RS, Flo ri da

ROBER T W. H EM PH IL L, So ut h C ar ol in a

DA N RO ST EN KO WSK I, Il lino is

JA M ES C. HE AL EY , New York

HO RA CE R. KO RNEGAY , N ort h C ar ol in a

W. R. H IL L, J r., M iss ou ri

G IL L IS W. LONG , Lou isiana

LIO N EL VAN DEER LI N, C al if or ni a

JO HN B. BE NNETT , M ichiga n 

W ILLI AM L. SP RIN G ER, Illino is 

PA UL F. SC HE NC K, Ohio 

J. AR TH UR YO UN GE R, C al if or ni a 

MILT ON W. GL EN N, New Je rs ey 

SA MU EL L . DEVIN E, Oh io 

AN CH ER NELS EN, M in ne so ta 

HA ST IN GS K E IT H , M as sa ch us et ts 

WILLA RD S. CU RTI N, Pen nsy lv an ia 

AB NE R W. SI BAL, Con ne ct ic ut 

GL EN N CU NN INGH AM , N eb ra sk a 

JA MES T. BROYHIL L, N ort h C ar ol in a 

DONA LD G. BR OT ZM AN , Co lorado

J. J. PI CK LE, Te xa s

W. E. Wil li am so n, C le rk

Ken n eth J . P ain te r, A ssi st ant C le rk

ProJessAoncl Staf f

Andrew Stev enson J am es M. Men ge r, J r.

Kcrt Borc har dt Wil li am J . Dixo n

Subc om m it te e on P ubl ic H ea lth a nd Safe ty

KEN NET H A. RO BE RT S, Alaba m a, Cha ir m an

LE O W. O’BR IE N, New York PA UL F. SC HE NC K, Ohio

PA UL G. RO GE RS , Flo ri da AN CH ER NELS EN, M in ne so ta

J . J. PIC K LE, T ex as DO NALD G. BR OT ZM AN , Co lorado

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C O N T E N T S

Page

Te xt of H.R . 4731______ 1

Reports of—

Budget Bureau_______________________________________________ 1

Hea lth, Educatio n, and Welfare________________________________ 2

Statem ent of—

Ellenbogen, Theodore, Counsel, HE W__________________________ 3

Harvey, John L., Deputy Commissioner, Food and Drug A dministration, HEW ________________________________________________ 3

Heide, Andrew H., vice pre sident, National Confectioners Association. 13

Communications submitted by—

Gudeman, Edward, Under Secretarv of Commerce, letter dated

March 2, 1962.________ ___________________________________ 18

Hoover, William J., adm inistrative vice prseident, Corn Industries

Research Foundation, Inc., lette r dated April 27, 1964_________ 25

h i

USE OF ADDITIVES IN CONFECTIONERY

TU ES DA Y, A PR IL 28 , 1964

H ouse of Representatives,

Subcommittee on P ublic H ealt h

and Safety of th e Committee on

I nterstate and F oreign Commerce,

4V ashington, D.C.

The subcommittee met at 10 a.m., purs uant to call, in room 1334, 

Longworth Building, Hon. Kenneth A. Roberts (chairman of the 

subcommittee) presiding.

Mr. Roberts. The subcommittee will please be in order.

The hearings today are on H.R. 4731, a bill to amend section 402(d) 

of the Federal Food, Drug, and Cosmetic Act, introduced by our 

colleague on the committee, Mr. Macdonald.

Under existing law, confectionery in considered per se adulterated 

if it bears or contains certain nonnutritive articles or substances. The 

bill would repeal these automatic features of the law, while leaving 

intact the provisions of the law pro hibiting economic adulteration of 

foods and section 401, which authorizes the establishment of definitions and standards of identity for food.

At this point in the record there will be inserted the text of the bill 

and the agencies reports thereon.

(The bill and reports referred to follow:)

[H.R. 4731, 88th Cong., 1st seas.]

A BILL To amend section 402(d) of the Federal Food, Drug, and Cosmetic Act

Be it enacted by the Senate and House of Representatives of the United States

of America in Congress assembled, That section 402(d) of the Federal Food. 

Drug, and Cosmetic Act, as amended, is hereby amended to read as follow s:

“ (d) If it is confectionery, and it bears or contains—

“any alcohol other than not to exceed one-half of 1 per centum by volume 

derived solely from the use of flavoring extracts.”

Executive Office of th e P resident,

Bureau of th e Budget, 

Washington, D.C., April 27, 1964.

Hon. Oren Harris.

Chairman, Committee on Interstate and Foreign Commerce,

House of Representatives, Washington, D.C.

Dear Mr. Chairm an : This is in response to your request of March 20, 1903, for 

the views of the Bureau of the Budget on H.R. 4731, a bill to amend section 402(d) 

of the Federal Food, Drug, and Cosmetic Act.

In his report to you on this bill, the Secretary of Health, Education, and 

Welfare recommends against enactment of the bill in its present form and suggested certain changes in the proposed amendment. The Bureau of the Budget 

concurs in the views expressed by the Department of Health. Education, and 

Welfare and, accordingly, does not favor enactment of II.R. 4731 in its present 

1
2 USE OF ADDITIVES IN CONFECTIONERY

form. However, the Bureau would have no objection to the enactment of this 

bill if the changes recommended by the Secretary were incorporated in the legislation.

Sincerely yours,

P hil lip S. H ughes,

Assistant Director for Legislative Reference.

Department of Health, Education, and Welfare,

September 24, 1963.

Hon. Oren Harris,

Chairman, Committee on Interstate and Foreign Commerce,

House of Representatives, Washington, D.C.

Dear Mr. Chairman : This let ter is in response to your requ est of March 20, 

1963, for a rep ort on H.R. 4731, a bill to amend section 402(d) of the Federal 

Food, Drug, and Cosmetic Act.

The present section 402(d) of th e a ct re ads as follows:

“ (d )I f it is confectionery, and i t bears or contains any alcohol or non nutritiv e 

article or substance except author ized coloring, harm less flavoring, harm less 

resinous glaze not in excess of four-te nths of 1 per centum, na tural gum, and 

pe ctin: Provided, That this parag rap h shall not apply to any confectionery by 

reaso n of its containing less tha n one-half of 1 per centum by volume of alcohol 

derived solely from the use of flavoring extrac ts, or to any chewing gum by 

reason of its containin g harm less nonnutritiv e masticatory substances.”

The bill would amend this subsection to r ead a s fo llows:

“ (d) If it is confectionery, and it bears or contains —

‘any alcohol other tha n not to exceed one-half of 1 per centum by volume 

derived solely from the use of flavoring extra cts .’ ”

The original prohibition in the Food and Drugs Act of 1906, inserted because 

of bad practices which had been employed by some members of the confectionery 

trade p rior to tha t time, considered confectionery to be ad ultera ted “ If it contain 

terra alba, barytes, talc, chrome yellow, or other min eral substance o r poisonous 

color or flavor, or oth er ingredie nt dele terious or detrim ental to hea lth, or any 

vinous, malt, or spirituous liquor or compound or narcotic drug.” When the 

1938 act replaced the old Food and Dru gs Act, the prohibitio n again st nonnutritiv e substances was not only containe d but expanded, as above shown, to 

cover any non nutritive substances or art icl es except harm less coloring, harmless 

flavoring, glaze, and natur al gum and pectin. (The Color Additive Amendments 

of 1960 changed “harmless coloring” to “authoriz ed coloring.”)

The law also proh ibits confectionery th at “bears or con tain s” trinkets which 

are not edible.

II.R. 4731 und ertake s to relax these requ irem ents of the law. This must be a 

matter of concern, especially when the articles involved are foods so widely 

eaten by people of all ages and particu larly by children.

The prohibition aga inst nonnutritiv e articles such as trin kets has been extrem ely valuable as a public hea lth measure. We have had reports of children 

who swallowed these trin kets or whose teeth or mouth tissu es were injure d as 

a res ult thereof. Now that these are prohibited from use in confectionery this 

problem rarely arises.

We have also encountered consignments of candy made with talc and have 

uniformly proceeded aga inst such lots und er the autho rity of the pre sen t section 402 (d). The most recent actions in thi s field, however, have n ot involved 

confectionery manuf actured in the United State s, but rather products offered 

for entry from oth er countries. We believe that if H.R. 4731 were enacted in its 

present form, it would be claimed th at this had the effect of legalizing the 

addition to talc to confectionary' in practic ally any amount sho rt of th at which 

would so change the cha rac teristics of the prod uct th at it would no longer 

app ear to be confectionery. It would also be claimed to have legalized the 

bad practice of ad ding trink ets.

It is true th at the bill would not affect section 402(b) of the act, dealing 

with “economic adulteratio n” of all foods, or section 401, authorizin g us to 

establish definitions and standard s of ide ntity for food. We believe, however, 

that the utiliza tion of section 402(b), the so-called “economic adult era tio n” 

section, to deal with non nutritive substan ces in products of such variable identity as confectionery would be extremely difficult, and there is, in our opinion,
USE OF ADDITIVES IN CONFECTIONERY 3

no likelihood that standard s of ide ntity could be prom ulgated with enough 

alacrity to hand le the problem. Indeed, as mentioned previously, the proposed 

amendment to section 402(d) mig ht even be claimed, and conceivably held, to 

have legalized use of such nonnutritiv e ingredie nts as talc and the trinkets. 

Thus, we believe th at the proposed amen dment goes too far.

We therefo re recommend again st enactmen t of H.R. 4731 in its present form.

We understand, however, from discussions with spokesmen for the candy industry, th at the industry has no desire to thus weaken the presen t law but, 

rather, th at it desires merely the rig ht to use safe non nut ritive substances in 

the manufacturing process where the substance serve s a useful purpose, such as 

the use of mineral oil as slab grease. We would not object to an amendment 

to the present section 402(d) which would merely provide a mean s whereby 

the industry may legally employ safe non nutritive substances having functional 

value in the production of this class of food. This could be accomplished by 

adding to the present section 402 (d) an additio nal proviso along the following 

lin es :

“Provided further, Th at this paragraph shall not apply to a safe nonnutritiv e 

substance which is in or on confectionery by reason of its use in the manufacture, packaging, or storage of such confectionery, if such use of the substance 

(including the amount thereof rem aining in or on such confectionery) is in 

conformity with a regulation issued and in effect und er section 409, but no such 

regulation shall issue unless the Sec retary finds that such use has technological 

value in such man ufac ture, packaging, or storage and is in accordance with 

good manufacturing practice. Fo r the purpose of the application of section 

400 (b) thro ugh (h) of this act to this proviso, such non nutritive substance 

shall be deemed to be a ‘food addit ive ’ whether or not it is such within the 

meaning of section 201 (s). As used in this parag rap h (d ), the term ‘nonnu tritiv e’ ref ers to a substance or articl e which, when ingested by man, is not 

utiliz ed in normal metabolism, or w hich is inedible.’’

Further, as suggested in our rep ort of Febru ary 27, 1902, on a predecessor 

bill (H.R. 3548, 87th Cong.), we believe it desirable to couple such an amendment with the following add itio nal proviso to cla rify present law with respect 

to the m arketin g of trinkets with confectionery :

“Provided fur ther, That for the purposes of this parag rap h a tri nk et or other 

article packaged or held in the same contain er w ith confectionery shall be deemed 

to be contained in such confectionery unless such trink et or oth er articl e is not 

physically integr ated with or attached to it and is sep arately and distinctly 

wrapped .”

We are advised by the Bureau of the Budget th at there is no objection to the 

presentation of this report from the s tandpo int of the a dm inistration’s program. 

Sincerely,

Ant ho ny J. Ceeebrezz e,

Secretary.

Mr. Roberts. Our first witness today will be Commissioner John L. 

ITarvey, Deputy Commissioner, Food and Drug Administration. He 

is accompanied by Mr. Ted Ellenbogen, Office of General Counsel. 

We are glad to have you gentlemen and I am glad, Commissioner, th at 

you are in a little better health than you were the last time I saw you. 

I know you had quite a h ard time. We are real happy that you are 

all right now.

STATEMENT OF JOHN L. HARVEY, DEPUTY COMMISSIONER, FOOD

AND DRUG ADMINIST RATION; ACCOMPANIED BY THEODORE

ELLENBOGEN, OFFICE OF GENERAL COUNSEL, DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE, WASHINGTON, D.C.

Mr. Harvey. Thank you very much. Mr. Chairman, I think I will 

be around for a while yet.

Mr. Roberts. Fine. We hope so.

Mr. Harvey. Mr. Chairman and gentlemen, we are grate ful for the 

opportunity to appear before your committee today to discuss H.R.
4 USE OF ADDITIVES IN CONFECTIONERY

4731, a bill to amend section 402(d) of the Federal Food, Drug, and 

Cosmetic Act.

To discuss the effect th at passage of this bill would have upon the 

consuming public, I should touch briefly upon the history of tha t 

portion of the present law.

Prohibitions against the use of certain nonnutritive substances in 

confectionery have been a p art of our national food and drug law for 

almost 60 years. Such prohibitions in the original Food and Drugs 

Act of 1906 were enacted because of various harmful manufacturing 

practices then employed by some firms in the confectionery industry. 

That act deemed a confectionery to be adulterated—

If it contain terra alba, barytes, talc, chrome yellow, or other mineral substance or poisonous color or flavor, or other ingredient deleterious or detrimental 

to health, or any vinous, malt, or spiritous liquor or compound or narcotic 

drug.

When the 1938 act replaced the old Food and Drugs Act, the pro ­

hibition against nonnu tritive substances was continued and expanded 

to cover any nonnutritive substances or articles except harmless coloring, harmless flavoring, glaze, and natu ral gum and pectin.

Later, the Color Additive Amendments of 1960 changed “harmless 

coloring” to read “authorized coloring.”

The present law on the subject, which is incorporated into the 

Federal Food, Drug, and Cosmetic Act as section 402(d), classifies 

a food as adulterated—

(d) If it is confectionery, and it bears or contains any alcohol or nonnutritive 

article or substance except authorized coloring, harmless flavoring, harmless 

resinous glaze not in excess of four-tenths of 1 per centum, natu ral gum, and 

pec tin: Provided, That this paragraph shall not apply to any confectionery by 

reason of its containing less than one-half of 1 per centum by volume of alcohol 

derived solely from the use of flavoring extracts, or to any chewing gum by 

reason of its containing harmless nonnutritive masticatory substances.

The law also prohibits confectionery that “bears or contains” inedible trinkets or toys.

H.R. 4731 would amend section 402(d) to re ad :

(d) If it is a confectionery, and it bears or contains any alcohol other than 

not to exceed one-half of 1 per centum by volume derived solely from the use of 

flavoring extracts.

This would have the effect of relaxing the high standards set by 

the present law. The types of food here involved are consumed by 

virtually every person in this country but particularly by children 

and teenagers.

The exclusion from confectionery of nonnutritive articles such as 

trinkets and toys has been extremely valuable as a preventive public 

health measure. We have had reports of children who have swallowed these articles or who have suffered damage to their teeth or oral 

tissues when accidentally biting into such trinkets or toys.

We have also encountered consignments of candy made with talc and 

have consistently proceeded against such shipments under the authority 

of the present section 402(d). The more recent actions in this area, 

however, have not involved products of domestic confectionery manufacturers, but rather products offered for entry from foreign ports.

We believe that if ILR. 4731 were enacted in its present form, it 

would be claimed that this had the effect of legalizing the addition
USE OF ADDITIVES IN CONFECTIONERY 5

of talc to confectionery in practically any amount not sufficient to 

change the character of the product to something other tha n confectionery.

Representatives of industry, however, have told us tha t the ir purpose in proposing this revision to the present law is not to enable them 

to manufacture candy with objectionable substances such as talc, but 

rather to permit producers to obtain the advantages of new technological developments—emulsifiers, softeners, and lubricants, for 

example—which might make better candies with better keeping quality, but which are currently prohibited because they are nonnutritive.

Perhaps domestic manufacturers would not make any claims as to 

the permissibility of including ingredients such as talc, but foreign 

producers and domestic importers might since this ingredient has been 

used in foreign confectionery more recently. It would also be claimed 

by some to have legalized the dangerous practice of adding toys and 

trinkets to candy.

It is true that the hill would not affect section 402(b) of the act, 

which deals with adulteration of foods by economic debasement, or 

section 401, autho rizing the Secretary to establish definitions and 

standards of identity for food.

But we believe th at the utilization of section 402(b), the “economic 

adulteration” section, to deal with nonnutritive substances in products 

of such variable identity as confectionery would be extremely difficult. 

We also believe that there is virtu ally no likelihood tha t standards 

of identity could be promulgated with sufficient speed to deal with 

the problem.

Indeed, as mentioned previously, the bill, if enacted, might even 

be claimed, and conceivably held, to have legalized the use of such 

nonnutritive ingredients as talc and trinkets. Thus, we believe that 

the proposed amendment goes too far.

Therefore, Mr. Chairman, as noted in our Department's report on 

the bill dated September 24, 1963, we must recommend against enactment of II.R. 4731 in its present form.

However, as noted earlier, we understand tha t the confectionery 

industry has no desire to weaken the present law, but merely seeks 

the right to utilize safe nonnutritive substances in manufacturing 

processes where such substances would serve a useful purpose.

We would not object to an amendment to section 402(d) which 

would merely provide a means whereby the industry may legally employ safe nonnutritive substances having functional value in the pro ­

duction of this class of food. This could be accomplished by adding 

to the present section an additional proviso along the following lines:

Provided further, That this paragraph shall not apply to a safe nonnutritive 

substance which is in or on confectionery by reason of its use in the manufacture, packaging, or storage of such confectionery, if such use of the substance (includ­ ing the amount thereof remaining in or on such confectionery) is in conformity with a regulation issued and in effect under section 409, but no such regulation shall issue unless the Secretary finds that such use has technological value in such manufacture, packaging, or storage and is in accordance with good manu­ facturing practice. For the purpose of the application of section 409(b) through (h) of this Act to this proviso, such nonnutritive substance shall be deemed to be a “food additive” whether or not it is such within the meaning of section 201 (s). As used in this paragraph (d), the term “nonnutritive” refers to a substance or article which, when ingested by man, is not utilized in normal 

metabolism, or which is inedible.

33 -20 7—-64-----<2
6 USE OF ADDITIVES IN CONFECTIONERY

Further , as suggested in our report on the bill, we believe it desirable 

to couple such an amendment with the following additional proviso to 

clarify present law with respect to the marketing of trinkets with 

confectionery:

Provided furthe r, That for the purposes of this parag rap h a trink et or other 

artic le packaged or held in the same container w ith confectionery sh all be deemed 

to be contained in such confectionery unless such trinket or other articl e is not 

physically integr ated with or attach ed to it and is sep arately and distinctly 

wrapped.

Thank you, Mr. Chairman, for affording us the opportunity to 

present this statement of our position on H.R. 4731. We will of 

course do our best to answer questions tha t the committee may have.

Mr. Roberts. Thank you, Commissioner. The bill would, if I understand correctly, allow the use of certain nonnutritive substances 

tha t are not permissible under present law. Is tha t correct?

Mr. Harvey. Tha t is correct, as I understand it, Mr. Chairman.

Mr. R oberts. What would be the types of these substances? I believe you mentioned they would be emulsifiers, softeners, and lubricants. You classified those three I believe.

Mr. Harvey. Tha t is right, Mr. Chairman.

Mr. Roberts. Maybe I should save this for the industry, but I know 

you have a wide experience in this field. What would be an example, 

if you have one tha t comes to mind, of one of these substances tha t is 

nonnutritive and safe but is not permitted under present law?

Mr. Harvey. One tha t my colleagues have suggested to me Mr. 

Chairman, is mineral oil slag grease Which is applied to the slabs of 

tabletops upon which confectionery is handled.

Mr. R oberts. What effect would tha t have ? Does it make it easier 

to work the confectionery? Is tha t the purpose of it?

Mr. H arvey. Yes.

Mr. Roberts. Are most of the candies—I say candies because that is 

the first one t ha t comes to my mind, but I am sure there are other 

types—made with the use of a great deal of machinery and equipment? 

I mean is there much actual manual handling of the confectionery, or 

is most of it handled by mixture, and metallic containers, and tha t sort 

of device?

Mr. Harvey. Most of the manufa cturing processes are handled by 

machinery, yes.

Mr. Roberts. Are the standards of manufacture in our country in 

your opinion in what we would call good sanitary conditions according to the information tha t you have available at this time?

Mr. H arvey. Yes. Yes, generally, the candy factories are clean and 

well operated.

Mr. Roberts. Do you have any way of inspecting the product of 

foreign manufacturers before it gets to this country ?

Mr. Harvey. No, sir; we do not.

Mr. Roberts. In other words, your only chance at it is after it is 

ready for consumption by the customers here?

Mr. Harvey. Th at is certainly true as a routine proposition. I 

do recall a certain instance in which during wartime, when we were 

receiving gre at quantities of candy from a nearby country because of 

shortages of sugar here, restrictions on the use of sugar, we encountered 

such weird material in the laboratories tha t we made arrangements
USE OF ADDITIVES IN CONFECTIONERY 7

through the State Department to have some of the attaches visit some 

of the foreign candy manufacturers.

Of course that was with the consent and on the invitation, you might 

say, of the foreign manufacturers. However, aside from tha t par ­

ticular situation we have no facility for any foreign inspection and no 

authority.

Mr. Roberts. I was under the impression that in connection with 

the Drug Amendments Act of 1962 we incorporated a new section on 

foreign foods and drugs.

Mr. H arvey. There is a provision in the 1962 amendments relating 

exclusively to drugs which provides in relation to the registration 

of foreign drug manufacturers that registration must be made contingent upon the Secretary having a suitable facility and opportunity 

for inspection either by arrangement with the foreign government 

or otherwise.

This is exclusively with drugs and it presents a fairly elaborate 

problem and it has not been implemented yet.

Mr. Roberts. I don’t know how you feel about it, but it seems 

to me that we ought to explore this somewhat, and perhaps we need 

to give you more authority over foreign imports in this field, in the 

whole food field, as a matter of fact, because a lot of it is coming 

in here in competition with our own manufacturers.

It seems foolish to me to require high standards for our own people 

and not do that for things tha t are coming in from other countries.

Mr. Harvey. I can certainly comment and say that, without an 

opportunity to inspect the manufacturer and the raw materials, we 

cannot appraise and evaluate a product in the same way as we can 

when we liave access to the factory.

We, of course, can subject importations of candy and all other 

foods to a sample analysis at the time they are offered for entry within 

the limits of our resources, and we do.

We do examine foreign candy to a significant extent I think and 

we have encountered a number of situations, one of which I recall 

where they used ordinary house pain t as a coloring material in candy.

Several years ago—I think about 4 years ago—much to my surprise, in one of the ordin arily high-grade English taffies we encountered a considerable amount of talc, the common filler that was 

used years ago, so that it is quite true that the opportunity to investigate, to evaluate, food products generally that we have in this country 

does not apply to foreign countries.

I recognize, of course, th at it would involve a considerable amount 

of exploration. Certainly the State Department has a big interest 

in the matter, and it would involve international agreements I believe 

to work, b ut I answer your question by saying that the same opportunity to evaluate the food products tha t we have here through inspection and analysis and investigation of raw materials and sources 

we do not have in foreign production.

Mr. Roberts. Thank you, Mr. Commissioner. Ju st one other question and I am through. With the amendments you suggested and the 

proviso tha t you mentioned would you go along with the bill H.R. 

4371 ?

Mr. Harvey. Yes, sir.

Mr. R oberts. That is all I have. The gentleman from Minnesota.
8 USE OF ADDITIVES IN CONFECTIONERY

Mr. Nelsen. Thank you, Mr. Chairman. I notice this paragraph 

on page 4:

However, as noted earlier, we understand th at the confectionery industry 

has no desire to weaken the present law, but merely seeks the rig ht to utilize 

safe non nutritive substances in manufacturing processes where such substance 

would serve a u seful purpose.

I take it from that language that you do agree that there are some 

revisions that could be usefully made to the candy manufacturing industry by some relaxation of the present law.

Is that true ?

Mr. Harvey. Yes, si r; I believe so.

Mr. Nelsen. You further state tha t the proposed amendment goes 

too far relative to trinkets. ITas there not been some discussion between the industry and the Food and Drug Administration relative 

to the trinkets provision with the idea that they would be perfectly 

willing to make it clear in the language of this hill?

Has there not been some correspondence going back and forth?

Mr. I Iarvey. I do understand tha t we can meet on common ground 

with the industry so fa r as the trink ets are concerned. I would comment th at by suggesting that the proposed bill goes too far, I intended 

it to apply not alone to trinkets, but to the other provisions, relaxing 

of nonnutritive substances generally.

Quite frankly, I think we would have a tremendous amount of di fficulty with the imported products if we have the type of relaxation 

tha t is suggested by this bill. There have been at least 16 shipments 

of confectionery tha t we stopped at the port of New York in the last 5 

years containing various nonnutritive substances.

Air. Nelsen. This has been covered to some degree by the chairman’s questioning. How do you check thoroughly on imported 

products ?

Of course, you would have to analyze the product to determine 

what, is in it. It would be very difficult, I would presume, to check 

the foreign manufacturer’s product, would it not, much more difficult, as you have mentioned earlier, than checking our own 

manufacturers ?

Mr. II arvey. This is true, and candy of course comes in almost 

an infinite variety and it presents at least time-consuming and 

troublesome problems that you can’t get in a shipment of canned 

beans, for example.

Mr. Nelsen. Thank you. It has lieen my information tha t some 

of the restrictions under the present law have made it very difficult 

for a candy manufacturer. For example, you mentioned mineral 

oil. I understand in the manufacturing process unless something is 

put. on the table the product will stick to the table.

Mr. Harvey. That is right.

Mr. Nelsen. And to use a mineral oil under the terms of the bill 

would be illegal, would it not?

Mr. Harvey. If it is introduced into the candy, yes.

Air. Nelsen. And I presume it would be if it is on the table.

Air. H arvey. I thin k it is inescapable to a degree; yes, sir.

Air. Nelsen. It is also my understanding that many nonnutritive 

additives are permitted, for example, in a baby food t hat would not 

be permitted in candy. Is that true ?
USE OF ADDITIVES IN CONFECTIONERY 9

Mr. H arvey. Frankly, I am unaware of any permissive use of nonnutritives in baby food. There may be some, but I don’t recall. Do 

you? I think you have chosen an example where I would be fairly 

safe in saying “no” to tha t question.

Mr. Nelsen. I was wondering about chewing gum, for example. 

Is chewing gum nutritive ?

Mr. Harvey. No. Chewing gum by its nature is nutritive only to 

the extent of the sugar and slight amount of flavor tha t is derived 

from it. Also it isn’t swallowed, except the soluble parts. At 

least it isn’t intended to be swallowed.

Mr. Nelsen. Has the proposed amendment tha t you suggest here 

been discussed at all with the industry tha t is under consideration ?

Mr. Harvey. Yes, sir.

Mr. Nelsen. Mr. Chairm an, at this time I don't believe I have 

any further questions, but I do hope tha t at some later date, if we 

get to discussing this proposed amendment, tha t we might be in the 

position to ask further questions of the Department.

We certainly want to do everything we can to be sure that no mistakes are made in this very important held.

Mr. Roberts. The Department is always willing to come up so we 

have no trouble with that.

Mr. O’Brien.

Mr. O’Brien. Mr. Chairman, I am really touched by the concern 

for the children in this matter. They do eat a great deal of candy 

from my observation. I have seven grandchildren. They also eat 

a great deal of cake, cookies, ice cream, soft drinks, and I will skip 

baby foods. I would say the quantity consumed of those articles is 

much greater than the quantity of candy consumed.

Why is candy singled out ?

Mr. Harvey. I would say first of all that the practices tha t did 

prevail at the time of the enactment of the law in 1906 focused attention on candy as a children’s food tha t needed correction. Through 

the years I am sure that candy has improved a great deal, at least in 

this country’, both in the law and under good conscience.

So f ar as the soft drinks are concerned, the only nonnutritive substances tha t I am familiar with that are used in those are the specially 

identified saccharin or sucro-sweetened products which are clearly 

identified and which a great deal of experimentation has shown to be 

harmless.

Mr. O’Brien. You mentioned tha t the situation was pretty bad in 

the candy industry some years ago.

Mr. Harvey. That is right.

Mr. O’Brien. So you put in a strong law.

Mr. Harvey. That is right.

Mr. O’Brien. And afte r 60 years of probation you are unwilling 

to concede a thing to the candy industry? They have improved. 

You said so.

Mr. H arvey. Yes, I have a great deal of confidence in the domestic 

candy industry and very little in the foreign, to be frank about it.

Mr. O’Brien. Why should the American products be punished because in some way our Government is unable to control imports?

Mr. H arvey. I don’t believe that the proposal tha t the Department 

is offering here is in the nature of punishment a t all. I think that in
10 USE OF ADDITIVES IX CONFECTIONERY

any instance where the manufacturer can show it is a safe and useful 

nonnutritive addition to his candy and it would be a desirable thing, 

he can do so.

Mr. O’Brien. Are people who use additives in other foods required 

to produce that kind of proof ? Why candy alone ?

Mr. Harvey. Yes, to answer your question, Mr. O’Brien, in the 

additive field generally they are required to produce this.

Mr. O'Brien. Not in as many specific instances as the candy industry.

Mr. Harvey. Well, if the substance is in fact a food additive in 

every instance its use has to be justified by regulation.

Mr. O’Brien. Then you have to justify it a second time because it 

goes into candy; isn't th at correct ?

Mr. Harvey. Well, one justification would be sufficient. If it were 

justified for soft drinks, for example, any additive would have to 

be justified if used in some other food.

Mr. O’Brien. I have no desire to poison children, but is the administration of your Department as concerned as you appear to be by 

your testimony here today, or is there a possibility that, having had 

on the books for a number of years a very stringent law, needed and 

desirable at the time it was enacted, you don’t want to be put in the 

position if some child gets a bellyache from a candy bar of saying, 

‘‘Well, we let down the bars and we are responsible so let’s keep this 

old law on the books.” Is th at possible ?

Mr. II arvey. I wouldn’t deny t hat we wouldn’t want to be pu t in 

tha t position, Mr. O ’Brien, but I don’t think tha t this is the root of 

the Department’s point of view.

Mr. O’Brien. I can’t understand any other reason for it. I believe 

the American public is entitled to a tremendous amount of protection 

in what it consumes, what it eats, and tha t includes candy as well as 

spinach, but I can’t see why one product, one product alone, should 

be singled out for very special protection.

You have mentioned trinkets. That is a very minor thing. The 

injection of the trinkets argument into this situation indicates to me 

tha t the Department is reaching very far afield to prove a point th at 

doesn’t exist.

As I say, I don’t want children in this country poisoned but I think 

tha t they are entitled to the same protection in baby foods or cake or 

candy or cookies and that one industry not singled out as the villain 

in the piece.

Mr. Harvey. Mr. O’Brien, on the trinkets, the Department’s interest 

in dra gging this in, to use that phrase, arises out of the fact tha t under 

the law as it is now written with regard to trinkets we have an adverse 

decision in the court of appeals over a district decision which complicates the enforcement of the law with regard to tha t particular type 

of adulteration.

We felt that this ought to be clarified, and so far as I am aware there 

is no serious objection to the straightening out on the part of the 

candy industry.

Mr. O’Brien. That is my understanding too, so it boils down to 

this very simple fact, as I see it: That the children of this country 

need a protection with regard to candy tha t is not given to them in 

any other product they consume; is that correct ?
USE OF ADDITIVES IN CONFECTIONERY 11

Mr. Harvey. I thin k tha t is correct.

Mr. O’Brien. Thank you, Mr. Chairman.

Air. Roberts. Thank you, Air. O’Brien. Air. Rogers.

Air. Rogers of Florida. I am sorry I was just a little late and didn't 

have time to read your full statement. Do I understand tha t you 

treat the confectionery industry differently than you do the other 

industries th at use food additives?

Air. Harvey. The statute, Air. Rogers, both the old 1906 law and 

the 1938 law, has a section, a clause, on confectionery which is designed to prohibit most of the nonnutritive substances t ha t may be 

used in candy, to specify those that can and limit them.

Air. R ogers of Florida. Is it true tha t tha t is a different treatment 

than for other food industries, industries that use these same substances?

Air. Harvey. In the sense that nonnu tritive substances are not 

statutorily prohibited in other foods; yes.

Air. Rogers of Florida. AVhy should it be here then ?

Air. Harvey. Among the reasons is the fact that nonnutritive substances have been rather extensively used in candies and, as I commented earlier, to a considerable extent are now in use particularly 

in foreign countries.

Air. Rogers of Florida. This could be true I suppose with many 

other industries, couldn’t it? Do you check all the foreign goods 

tha t come in? Do they always use the same thing as our domestic 

industry ?

Air. H arvey. Not invariably, except where there are standards that 

require them to do so.

Mr. Rogers of Florida. AVell, if it is permitted in food tha t our 

people are going to consume, the children and the old people too, in 

other foods, what is the distinction here ?

Why should just candy be set apart?

Air. Harvey. The first and prim ary reason is because th e candy is 

consumed largely by children.

Air. Rogers of Florida. So is bread and so is everything else. I 

don’t think that is a good argument. It is either safe or it isn’t.

Air. H arvey. Our proposal I think, Air. Rogers, with regard to this 

bill would have the effect of puttin g all the foods on the same basis.

Air. Rogers of Florida. AVliat is that? How would you do that?

Air. H arvey. AVe have merely suggested as to the nonnutritive substances, instead of being prohibited, tha t the use be authorized after 

the proposal is considered and a showing is made that they serve 

some useful and substantial purpose and are safe, which is true of 

food additives generally.

Air. Rogers of Florida. Would tha t apply to all food additives in 

all other industries then ?

Air. Harvey. The food additive law of course already applies to 

all other industries.

Air. Rogers of Florida. I am saying your proposal. Would it apply to all others, or just the confectionery industry.

Air. H arvey. This proposal would apply only to the confectionery.

Air. Rogers of Florida. AVhy don’t you want to put them along 

with every other industry. AVliy shouldn’t they be treated the same 

as any other industry ? Is there any reason for it ?
12 USE OF ADDITIVES IN CONFECTIONERY

Mr. Harvey. We think so; yes.

Mr. Rogers of Florida. What is the difference ?

Mr. Harvey. Mr. Rogers, there are two sides to this. One of our 

problems, if we enact a law such as is proposed here, would be dealing with foreign importations of candy which, as I pointed out 

earlier, are presently the source of nonnutritive substances that are 

causing us considerable trouble.

Air. Rogers of Florida. Suppose we write into the law then that 

no foreign candy can be imported with these substances. Would 

tha t please you then ? Suppose we put in a provision saying nothing 

can be brought in with tha t ?

Air. H arvey. But you make a different role for the imported article 

than we have for the domestic article.

Air. Rogers of Florida. Well, you say that is what is needed. Tha t 

is your argument. That is not mine. You just said that the only 

reason you want this is for the foreign candies.

Air. Harvey. I didn’t intend to say tha t is the only reason.

Air. Rogers of Florida. I don’t mean to put words in your mouth. 

We will rule tha t out. What are the other reasons ?

Air. Harvey. You say what are the other reasons ?

Air. Rogers of Florida. Yes, why you would be opposed to pu tting the candy industry on the same basis as the other domestic industries.

Air. Harvey. I thin k candy is a product of a special classification 

of its own and I don’t believe that artificial sweeteners, and mineral 

oil, and things of that kind are proper in candy.

Air. Rogers of Florida. Even though it is safe ?

Air. H arvey. Well, I want to be sure it is safe. It sends us to some 

other sections of the law.

Air. Rogers of Florida. Doesn’t the food additive law require 

safety ?

Air. Harvey. If it is a food additive.

Air. Rogers of Florida. I thought that was what we wrote into 

the law, as I recall.

Air. Harvey. That is right. We are simply proposing here that 

any nonnutritive substances proposed for use in candy be passed on 

in the same way that a foood additive is.

Air. Rogers of Florida. "Why differently though ? Why don’t you 

trea t them all the same? Why do you wan t to make a distinction?

Air. Harvey. I don’t exactly see that this is m aking a distinction.

Air. R ogers of Florida. You say you are treating the confectionery 

industry differently than you are all o f th e other industries that used 

food additives. Why don't you have the same ground rules? As long 

as the food is safe and not harmful why shouldn’t the candy industry 

be treated the same way ?

Air. H arvey. I think tha t our proposals, Air. Rogers, essentially do 

that.

Air. Rogers of Florida. Then you have no objection to trea ting them 

the same ?

Air. Harvey. I have no objection to any additive that goes into a 

food, whether it is candy or some other product, being treated the 

same way, tha t is right.

Mr. Rogers of Florida. I th ink that will help the committee then. 

We can trea t them all the same. Thank you.
USE OF ADDITIVES IN CONFECTIONERY 13

Mr. R oberts. Any th in g fur th er ?

Mr. Nelse n. No more questions.

Mr. R oberts. Any th in g f urther ? Th an k you, Mr. Com missioner.

Mr. H arvey. Tha nk you, Mr. C ha irm an an d gentlemen .

Mr. Roberts. O ur next witness will be Mr. An drew He ide , vice 

presi dent, Na tio nal Confe ctioners Assoc iation, and chair ma n of the 

associatio n’s com mittee on food an d dr ug ad minist ratio n problems.

STATEM ENT OF AN DR EW H. HE IDE, VIC E PRES IDEN T, NATIO NAL

CONFECTIONERS ASSOC IATION AND CH AIR MA N OF ASSOCIATION’S

COMMITTEE ON FOOD AND DRUG AD MINISTRA TIO N PROBLEM S

Mr. Heide. Mr. Ch airm an , my nam e is An drew H. Heide. I am 

presiden t and ch airm an of the board of Hen ry Heide , Inc ., con fec ­

tio ne ry m an uf ac tu rers located in New Brunsw ick , N.J., and 1 app ea r 

as vice presi dent, a s a mem ber o f the bo ard o f dir ector s, and as ch airman of the Co mm itte e on Food an d Dru g Adm inist ratio n Problem s 

of the Na tio nal C onfec tioners As sociation.

Th is a ssoc iation is a na tio na l tr ad e association of co nfectio nery m an ­

uf ac tu re rs located th ro ug ho ut the United St ates and supp lie rs of 

goo ds and services to th e ind ustry . We estim ate ou r man uf ac tu rer 

members pro duce ap prox im ately 85 p erce nt o f th e con fectionery pr oduc ed in th e United S tat es.

Th is appeara nce is en ter ed in su pp or t of II.R . 4731 whi ch would 

pla ce con fectionery on an equal basis with all othe r segments of the 

food in du str y r eg ar di ng the use of food additiv es.

PURPOSE AND NEED FOR H .R . 4 7 31

As I commence my stat em ent, there is one po int I w an t to mak e ab solutely clea r to prev en t an y misu nd ersta nd ing re ga rd in g this pro posed 

leg islation.

We are concerned with saf e addit ive s an d only wi th saf e additive s. 

By safe a dditiv es we have reference to ad dit ive s which the Food and 

D ru g Adm inist ratio n alread y has dec lared to be saf e fo r un res tricte d 

use o r sa fe for use within pre scr ibe d limits.

Als o, we are con cern ed wi th addit ive s which th e Fo od and Dru g 

Adm inist ratio n in the fu tu re m ay approv e fo r un restr icted or limited 

use b y food i ndustries in genera l. Th is leg islati on does not p ertain, or 

would not hav e a pp lic ation, to any a dd itive which th e F ood and Dru g 

Adm in istra tio n eit he r ha s no t dec lare d to be saf e fo r un res tricte d 

use or safe f or use within pre scr ibe d limits.

Und er existing law unless a specific ad ditiv e is nu triti ve , the Food 

an d D ru g A dm inist ratio n ma y no t au thorize its use in con fection ery 

even thou gh it is abs olutely saf e and its usa ge may be autho riz ed for 

all othe r seg men ts of the food in du str y.

We have two basic reason s fo r str on gly ad vo catin g the legisla tion . 

One, an d ad mi tte dly this is a hea vy po int wi th us, is th at existing 

law unf ai rly, unn ecessarily, an d wi thou t any usefu l pu rpose wh ats oeve r dis cri mi nates ag ains t th e confe ctionery indu str y. As ha rd as 

it is to believe, this is all th ere is to it.

Ad mitted ly, a com plexity o f law s h as brou gh t abou t the ineq uitable 

sit ua tio n which I s hall expla in. Nevertheless as a re su lt o f the appli -
14 USE OF ADDITIVES IN CONFECTIONERY

cation of the various pro vision s of t he food and dr ug la w, th e confectio ne ry indu str y, and only the confe ctionery indu str y, ma y no t use 

no nn ut ritiv e substan ces which o th er segm ents of the foo d ind us try m ay 

use.

Aside fro m the matt er of discrim ina tio n wi thou t a basis, section 

40 2(d) of th e Federal Food, Dru g, and Cosmetic Ac t h as a v ery direct 

ap plication to our business opera tions. As we all kno w, in toda y’s 

world of chem istry new ad dit ive s are conti nu all y being devel oped— 

addit ive s which will increase s he lf lif e and im pa rt desirable qua lities 

to the pr od uc t fro m the stan dp oi nt of taste, texture an d flav or enhan cem ent —th at is, prese rvatives an d emulsifiers of all kin ds.

Pr op er ly th e food additive s am endm ent req uir es the safety o f such 

addit ive s to be established to th e satis facti on of th e Fo od an d Dr ug 

Ad minist ratio n.

However , af te r the Food an d D ru g Adm inist ratio n establ ishes the 

safet y of such add itives, eit he r fo r un restr icted use or fo r use within 

pre scr ibe d lim its, such ad dit ive s ma y be used by the canning , froz en 

food , bakin g, bottling, and pr eserving segmen ts of the food indu str y 

among othe rs, as well as the baby foods indu str y.

However, such safe addit ive s ma y no t be used by con fectionery 

man ufac turers because of section 40 2( d) of the Fe de ral Fo od, Dr ug, 

and Co smetic Act which pro vid es a s follows:

A food shall be deemed to be adu lte rated —

(d) if it is confectionery, and it bears or contains any alcohol or nonnutritiv e 

article or substance except authorized coloring, harm less flavoring, harmless 

resinous glaze not in excess of fou r-te nth s of one per centum, na tural gum, and 

pe ctin: Provided, That this parag rap h shall not apply to any confectionery by 

reaso n of its containin g less tha n one-half of one per centum by volume of alcohol derived solely from the use of flavoring extrac ts, or to any chewing gum by 

reason of its containing harm less nonnutritiv e masticatory substances.

H.R. 4731 would am end section 402 (d) to read as fo llo ws:

(d) If it is confectionery, and it bea rs or contains —“any alcohol other tha n not 

to exceed one-half of one per centum by volume derived solely from the use of 

flavoring e xtracts .”

Le t me prov ide an illus tra tio n to indic ate the pro blem th is matter 

presen ts fo r o ur ind ustry. Let us assume a c andy m an uf ac tu re r is in 

need of an ad dit ive to im pa rt some special qu ality to one of his 

pro ducts. He consults his tec hnica l pe rso nnel who in tu rn co nsult with 

some of the Nation’s lea din g chemical com pan ies who man uf ac ture 

addit ive s fo r use by th e food i nd us try .

After stu dy the cand y m an uf ac tu re r ma y be adv ised th at his su ppl ier has th e very a dditiv e which will serve his p urpo se wh ich ha s been 

dec lare d to be safe and which ma y be used by othe r segments of the 

foo d indu str y. Th en the m an uf ac tu re r must ask the q uestion whi ch 

th e law requ ires, b ut which serves no useful pu rpose—t hat is, is th e p artic ul ar a dd itive n utrit ive ?

If , fo rtu na tely, the a dditiv e h ap pe ns to be nu tri tiv e, t he n all is fine. 

If it happens th at t he addit ive is n ot nu triti ve , he cannot use it ir re ­

spectiv e of the final qualities an d its capa city to im pa rt the quali tie s 

which he desires.

Also, there are times when i t is no t know n wh ethe r or no t th e p artic ul ar ad ditiv e is nu tri tiv e. Whe n th is occurs, obviously the partic ular ad ditiv e eit her is no t nutritiv e or is nu tritiv e only to an in ­

significant extent . From the stan dp oi nt of nu tritio n, such an addi-
USE OF ADDITIVES IN CONFECTIONERY 15

tive is virtually worthless, but if there is any nutritive value whatsoever, legally it may be used. To determine this factor, however, considerable technical analysis may be necessary, all of which serves no 

useful purpose except in connection with the legal requirement.

H IS TO R Y OF DEVEL OPM ENT OF T H E CURRENT SIT U A T IO N

Many years ago, before the tur n of the century, harm ful additives 

were being used by some candy manufacturers. This became a concern of legitimate candy manufacturers. In fact, when the National 

Confectioners Association was organized in 1883, an important objective was to advocate Federal legislation which would prevent the 

manufacture and shipment in interstate commerce of confectionery 

containing ha rmful additives.

Apparently at tha t time the most meaningful index o f wholesomeness was nutritiveness and legislation was enacted which has been carried forward in subsequent food and drug laws including the present 

law which requires, with certain minor exceptions, th at all additives 

used in confectionery must be nutritive.

This provision of law served a useful purpose for many years. 

However, as new additives were developed which could be used by all 

ether segments of the food industry, the language served to place a 

severe restriction on confectionery manufacturers.

Accordingly, we discussed the matter with food and drug officials 

about 10 years ago to determine the FDA viewpoint regarding possible amendment. The informal opinion of FD A officials was that the 

Department would oppose any relaxation of section 402(d) at that 

time. They stated they would be willing to consider elimination of 

the discriminatory provision regarding nonnutritive substances in 

confectionery if and when a broad food additives amendment should 

be enacted requiring pretesting to assure the safety of all additives 

used in all foods.

They made it clear that the position which they took at tha t time 

did not mean a different position would be taken at such time as an 

overall food additives amendment should be enacted. They merely 

stated they would be willing to consider the problem at such time. 

They explained and we understood their position tha t they did not 

feel they could consider easing section 402(d) control over the confectionery manufacturers until they should have adequate means of control over all segments of the food industry to assure the safety of all 

additives used in all foods.

Although this position made it difficult for confectionery manufacturers at the time, we understood and readily accepted the*FDA position.

Several years later, a fter the food additives amendment became law, 

we returned to the Department and renewed our discussions. At first 

we were encouraged and were hopeful tha t inasmuch as FDA had 

authority to make sure all additives used in all foods were safe the 

Department would cooperate with the industry in obtaining amendment to section 402(d) so confectionery manufacturers might use the 

same safe nonnutritive substances which other segments of the food 

industry may use.
16 USE OF ADDITIVES IN CONFECTIONERY

However, as you are aware, the Food and Dru g Adm inistration has 

expressed opposition to H.R. 4731.

COMM ENTS ON FDA OBJEC TIO NS TO H .R . 4731

For ready reference, attached to my prepared statement is a copy of 

the letter from Health, Education, and Welfare Secretary, the Honorable Anthony J . Celebrezze, to Chairman Oren Harris, dated September 24, 1963, expressing the objections of the Department to H.R. 

4731.

(Note.—The letter referred to appears on p. 2.)

Mr. Heide. The letter makes reference to the Food and Drugs Act 

of 1906 and subsequent acts which expand section 402(d) and then 

criticizes H.R. 4731 which would relax section 402(d) and points out 

the heavy consumption of confectionery by children.

Reference to the 1906 and subsequent acts is ap propriate, however, 

as presented it is a watch without a mainspring. The mainspring is 

the Food Additives Amendment of 1958. If the food additives amendment had not been enacted, the comments would have been appropriate.

Prior to the enactment of the food additives amendment, the p rincipal legal deterrent to the use of harmful additives in confectionery 

was section 402(d). The food additives amendment, however, prevents the use of any harm ful additives in any food and the inclusion of 

harmful additives in confectionery still would be prohibited even if 

H.R. 4731 were enacted.

Instead of enacting the food additives amendment, Congress could 

have expanded the nonnutritive principle of section 402 (d) to all other 

food products in addition to confectionery. Whereas nutritiveness 

may have been the best index to assure wholesomeness at the beginning 

of the 20t,h century, unquestionably it is no t the best index to assure 

wholesomeness at the middle of the 20th century.

We think Congress wisely decided to establish a requirement of 

proof of safety instead of a requirement of nutritiveness in enacting 

the overall food additives amendment; otherwise other segments of the 

food industry would be in the same position in which confectionery 

manufacturers have been relegated; namely, prohibition against the 

use of desirable and harmless nonnutritive substances.

The Department’s letter makes an issue of talc. To us, this is 

nothing but a strawman. If talc is harmful, the food additives amendment gives the Food and Drug Administration full power to restrict 

its use not only by the confectionery industry but by all other food 

industries and we see no reason for a determination of the authorized 

usage of any additive to be different in the case of confectionery than 

in the case of any other food product.

Another point, which the Department raised which we feel is just as 

empty as the others, suggests tha t standards of identity would be 

necessary for confectionery in the event section 402(d) were modified 

in accordance with the provisions of H.R. 4731.

The Department states tha t such standards would be difficult to 

develop in the case of confectionery. It is true there are standards 

of identity covering a number of food commodities, but there are also 

many more food commodities which are not covered by standards of 

identity and which need not be so controlled, including confectionery.
USE OF ADDITIVES IN CONFECTIONERY 17

Fi na lly , the Dep artm en t ind ica tes it wou ld be agr eeable to am ending section 402(d ) to pe rm it the con fec tioner y indu stry to use safe 

no nn utrit ive substan ces if, when, an d to the ex ten t FD A sho uld ap ­

pro ve such usage by in dividu al reg ula tio n in each instance.

Mr. Ch airma n, we res pe ctf ull y ask, Why sho uld we be req uir ed to 

hav e the permission of FD A to use an ad ditiv e which FD A has alrea dy certified as bein g saf e fo r use by all othe r segments o f t he food 

indu stry ?

Th e suggested language its elf , which the D ep artm en t advocate s, in ­

dic ates th at the Dep ar tm en t wou ld appro ve the usage of such non - 

nu triti ve substances only when it mak es a fin din g “t hat such use has 

techno logical valu e in such man ufacture, packaging, or stor ­

ing * * *.” Th is is a pr inciple which was advocated bu t rejected by 

Congress in enac tment of the fo od a dditives am end ment.

We sug ges t th at tec hnolo gical advan cem ent and impro veme nt to day 

wou ld be fa r below its p resent h igh s ta nd ar d if a Governm ent agency 

in each instance ha d to be convinced of the technolo gical value of a 

pa rtic ul ar additive . Th is is the res ponsibi lity of th e man ufac turer 

in our pr ivate en ter prise system.

Rig ht fu lly it is the res ponsibi lity of the Food an d Dru g Ad ministration to make sur e th at th e use of a pa rtic ul ar ad ditiv e is safe, 

bu t its techno logical value s hould be determined by the man uf ac turer 

wi thou t refere nce to the Fo od and D m g Ad minist ratio n. Und er 

ex isting law, the co nfe ctionery ind ustry is t reated as a second-class cit izen an d th e am end me nt sug ges ted by the Dep artm en t would continue 

such tre atm en t.

We have an illus tra tio n wh ich we feel is pa rtic ul ar ly appli cab le to 

the sit ua tio n. A group of citizens are stan di ng on the str eet corne r 

wa iting fo r a traffic lig ht to tu rn g reen . A ft er the traffic lig ht turns 

green, all of the citizen s excep t one comm ence to cross the stre et. 

However, t his pa rtic ul ar citizen mu st firs t obta in permission from the 

policeman on the c orner b efo re he may cross on th e gree n light.

Th e Food and Dru g Adm inist ratio n in ap pr ov in g the safet y of 

food addit ive s gives a gre en lig ht to all othe r segmen ts of th e food in ­

du str y, fro m cann ing and fre ezing m an uf ac turers to baby food man ufacturers, but insists that con fec tioner y m an uf ac turers m ust h ave p er ­

mission to proceed on the gre en light. We believe th at the elected 

rep res entat ive s of the peo ple, ou r Con gress, will not pe rm it such 

action.

At th is p oint let it be emphasized th at we a pp rov e and respect most 

of the activ itie s of the Food an d Dru g Ad minist ratio n inclu din g in ­

spectio ns to insure p lant s an ita tio n and the requir em ents fo r the estab ­

lish ment o f the sa fet y of all a dd itive s used in all foods.

In seeking to con tinu e to impose on the confe ctionery indu stry a 

req uirem ent th at its mem bers ob tai n the permissio n of the Food and 

Dru g Adm inist ratio n fo r the use of saf e additive s, we contend the 

De pa rtm en t has overstepped its bound s inasmuch as the food addit ive s 

am endm ent bestows on the De pa rtm en t all o f the p ower it needs.

DEPARTME NT OF COMMERCE PO SIT ION

Al thou gh , ap pa rently, the Dep artm en t of Com merce was not requested to comm ent on H.R. 4731, the De pa rtm en t was in vit ed to comme nt on a sim ila r bill in the prece din g Congress—H .R . 3548. For
18 USE OF ADDITIVES IN CONFECTIONERY

ready reference I am attaching to mv prepared statement a copy of a 

letter from the Honorable Edward (irudeman, the then Under Secretary of Commerce, addressed to Chairman Oren Ha rris dated March 2, 

1962, in which the Department states its support of the bill. You will 

note one paragraph in the letter reads as follows:

One of the objectives of H.R. 3548 is to remove discrimination against one of 

the food industries (confectionery) arisin g from the situation in which no other 

food industries are prohibited from using harmless nonnutritive ingredients, as 

is the confetioner.v industry under the present section 402(d). To the extent that 

H.R. 3548 would accomplish this purpose, the Department of Commerce favors 

the bill.

CONCLUSION

Our position simply is that now that there is a broad statute requiring thorough pretesting of all food additives to assure safety before 

they may be used in any foods, that there is no reason why confectionery manufacturers should continue to be discriminated against and 

required to submit to a different and more exacting but also meaningless standard to which no other segment of the food industry is subjected.

(The Department of Commerce report referred to follows:)

The Secretary of Commerce, 

Washington, D.C., March 2, 1962.

Hon. Oren Harris,

Chairman, Committee on Inter state and Foreign Commerce,

House of Representatives, Washington, D.C.

Dear Mr. Chairman : This letter is in further reply to your request for the 

views of this Department with respect to H.R. 3548, a bill to amend section 

402 (d ) of the Federal Food, Drug, and Cosmetic Act.

Chapter III of the Federal Food, Drug, and Cosmetic Act prohibits and provides penalties for adulteration of food in interstate commerce. The present section 402(d) of the act defines what constitutes adulterated confectionery as that 

which contains any alcohol (except less than one-half of 1 percent originating 

from use of flavoring extracts) or any nonnutritive article or substance (except 

less than four-tenths of 1 percent of a harmless coloring, flavoring, resinous 

glass) and except natu ral gum and pectin.

Enactment of H.R. 3548 would remove from the present provisions “any nonnutritive substance” such as “harmless coloring, flavoring, resinous glass,” as 

adulterants in confectionery, and would add the requirement tha t any nonnutritive object or trinke t must be separately wrapped.

One of the objectives of H.R. 3548 is to remove discrimination against one of 

the food industries (confectionery) arising from the situation in which no other 

food industries are prohibited from using harmless nonnutritive ingredients, as 

is the confectionery industry under the present section 402(d). To the extent 

that H.R. 3548 would accomplish this purpose, the Department of Commerce 

favors the bill.

This Department also believes that the present prohibition against alcohol 

should be continued, as proposed in H.R. 3548. With respect to the proposed 

subsection (2) of section 402(d), it appears probable that new language may be 

proposed and we make no comment on this subsection a t this time.

The Bureau of the Budget advised there would be no objection to the submission of this report from the standpoint of the administration’s program. 

Sincerely yours,

Edward Gvdeman.

Under Secretary of Commerce.

Mr. Roberts. Thank you very much for your statement. Have you 

had an opportunity to review the suggested amendments which the 

FDA covered in its testimony this morning ?

Mr. Hetde. Yes, sir.

Mr. Roberts. What is your opinion of the effect of these amendments ?
USE OF ADDITIVES IN CONFECTIONERY 19

Mr. II eide. Mr. Chairman, we in the confectionery industry feel 

that it is discriminatory for us to be subjected to any regulation more 

stringent than those that apply to other segments of the food industry.

The recommendations of the Food and D rug A dministration would 

continue this discrimination. It would still leave us as second-class 

citizens in the food industry.

If a material is proved to be safe, it is safe regardless of what type 

of food it is included in. If it is permissible, let us say, to use something in a loaf of bread, which is always referred to as the staff of 

life—I am sure th at more people eat bread than eat candy—I see no 

reason why we should not be permitted to use it in our industry.

Mr. Roberts. Other than the fact that you are certainly opposed to 

this matter of discrimination as f ar as your industry is concerned or 

setting it apart, for different treatment than is accorded other segments 

of the food industry, how does this particular requirement hobble or 

restrict your industry at the present time ?

Mr. H eide. Mr. Chairman, there are a number of nonnutritive substances which would enhance the quality of confectionery products 

which we, under the law, are not permitted to use. There are, as we 

know today in the scientific world, developments taking place at a 

much more rapid pace than in times gone by and we know th at there 

will be available to the food industry various types of materials which 

will improve food products generally.

Should they happen to be nonnutritive, even though it would enable 

us to produce a better product for the consumer, we would be denied 

the use of these new commodities as they come on to the market.

Mr. Roberts. How does the restriction affect the industry from an 

economic standpoint ?

Mr. Heide. The point is a very excellent one and one t ha t I feel 

should be made as clear as we possibly can make it. There is no economic advantage in what the confectionery industry is asking for 

here.

The nonnutritive materials that would be incorporated into confectionery products in themselves are such a minute portion of the total 

mass and in every instance, with very few exceptions, are considerably 

more expensive than the basic materials used in confectioneries tha t it 

doesn’t affect us economically in that sense at all.

In other words, we are not seeking to cheapen our products; we are 

seeking to improve the finished product, so that the consumer will have 

an even better product than we have been able to furnish up to the 

present time.

Mr. Roberts. Do you sometimes with respect to a soft candy, for 

instance, have complaints from stores and people who carry the 

line of candies to the effect t hat in certain types of weather you get 

melting and loss of product in that way ?

Mr. Heide. I believe, Mr. Chairman, what you are referring to does 

not have a particu larly direct bearing on this problem. I thin k what 

you are re ferring to might be the extremes of temperature tha t would 

have an adverse effect on confectionery products.

I think we are prim arily concerned, first of all, with materials tha t 

do enable us to conduct our manufacturing operations more efficiently. 

There are some nonnutritives tha t are releasing agents. If you didn’t 

have the use of these materials you would run into all sorts of manu-
20 USE OF ADDITIVES IN CONFECTIONERY

facturing difficulties as far as getting the candy to free itself from 

the mold in which it is cast, or the candy, if it is not treated with a 

certain kind of a polish, such as a resinous glaze which we are permitted to use under limits, would stick together.

It would be in one large mass in a box. The pieces would not be 

individually free one from the other, and there are additives that 

enhance the flavor. There are other materials t ha t would extend the 

shelf life of a product. Some candies would d ry out in a relatively 

short time.

There are some materials that can be used and should be available 

to us th at would extend the shelf life of a product so that it would 

keep fo r a much longer time and be much more palatable to the consumer at the time he purchased it.

Mr. Roberts. Mr. O’Brien ?

Mr. O’Brien. Thank you, Mr. Chairman. You testified for the 

National Confectioners Association. May I ask what your own 

company is, sir?

Mr. I Ieide. My company, Mr. O’Brien, is Henry Heide, Inc., of New 

Brunswick, N. J.

Mr. O'Brien. Do you have any particular brand name ?

Mr. II eide. We sell products which I hope some of you gentlemen 

might recognize, such as Jujyfru its , Jujubes, licorice pastilles, diamond 

licorice drops. We have been in the confectionery business for 96 

years.

Mr. O'Brien. The witness for the Department seemed to make three 

points: One, that rather extra ordinary precautions are needed in 

this field because candy is largely consumed by children, which is a 

point I am willing to concede, although there is a tremendous consumption by adults, too.

Do you think tha t argum ent in and of itself can stand when we 

don’t have the same restrictions with regard to bread ?

Mr. H eide. No, sir. I thin k children, if I may just add to the answer, do consume very substantial quantities of ice cream, bottled beverages, soda pop, cookies, and various other forms of sweets, much to 

our displeasure at times, because they have captured a good share of 

the children’s dollar market and the confectionery industry is fighting 

hard to hold its place with the children and the money they have to 

spend.

They ingest tremendous quantities of these other foods and, if it is 

safe to have product X in a cookie, or a piece of cake, or in a scoop of 

ice cream, I quite frankly can’t understand why it is safe in that form 

but must be injurious if it is in the form of a candy bar.

Mr. O’Brien. The second point was the difficulty of controlling 

the imported candy which might not be as safe for children or adults 

as the domestic brands. What about that point ?

Mr. H eide. I believe tha t there is a lot to be done in tha t field and 

I thin k this has been explored by our industry with Food and Drug, 

and we in our industry would like to see, instead of just talking 

about a very limited number of safe nonnutritives, our Food and 

Drug Administration be empowered by whatever means are necessary to inspect foreign candy plants tha t are sending tremendous 

quantities of confectionery into this countrv and make them adhere 

to the rigid standards tha t we are compelled to adhere to in this 

country. There is a lot to be desired in that area.
USE OF ADDITIVES IN CONFECTIONERY 21

Mr. O’Brien. And the thir d point was the question of trinkets, 

and I assume tha t they are not nutritive. Would it be agreeable 

to your industry to have in the bill that we m ight report from this 

subcommittee a provision taking care of the trin ket situation?

Mr. H eide. I believe our industry on the subject of trinke ts would 

not actively oppose the change being recommended by Food and Drug. 

We do feel, however, that the present law adequately takes care of the 

situation and tha t there is no need to make any further revisions.

Mr. O’Brien. Do you feel th at the practical effects of this discrimination, obvious discrimination against one industry, will become 

worse as time goes by ?

In other words, there seems to be a tendency, on the pa rt of the 

Government a t least, to let sleeping dogs lie; why change the law.

If th at persists for some time will tha t h urt the industry ?

Mr. Heide. I believe it would have a cumulative effect as time goes 

on. While the substances that we are thinking about and have thought 

about for many years a re relatively few in number, with the fantastic 

developments being made in the food industry, all segments of it, and 

in th e field of food chemistry, there will be many substances available 

improving the quality of the food throughout the food industry tha t 

we would very much like to have the use of, if they are safe and are 

permissible to the other segments of the food industry.

Mr. O’Brien. Thank you very much, Mr. Chairman.

Mr. Roberts. The gentleman from Ohio.

Mr. Schenck. Thank you, Mr. Chairman. I heard part of Mr. 

Heide’s statement and read the rest of it and I have also read the 

statement here by the Food and Drug Administration.

It would just appear to me tha t if an additive is safe, it is safe, 

period, and it ought to be permitted to l>e used in any manner in which 

it is safe to be used.

I just don’t personally agree for the position tha t seems to have been 

arbitra rily taken by the Food and Drug Adm inistration on this point. 

Th at is all, Mr. Chairman.

Mr. Roberts. Thank you. Mr. Rogers from Florida.

Mr. Rogers of Florida. Thank you, Mr. Chairman.

Mr. Heide, I think your statement has pointed up the problem to the 

committee quite clearly. I share Mr. O'Brien’s concern perhaps that 

we should put in something about trinkets just to lie doubly safe, 

which I would think you would have no objections to.

I am concerned a little bit about the Department’s comment about 

talc. Is talc used in candy to any great degree in this country?

Mr. Heide. To my knowledge, Mr. Rogers, it is not used to any 

grea t degree in this country.

Mr. Rogers of Florida. Wh at is talc? Is that the same thing they 

use as talcum powder?

Mr. Heide. I believe it is the same thin g as the talc tha t is mined 

for making talcum powder. If I may say this, if talc is safe, why 

should there be any objection to it? I fran kly believe tha t what is 

being said here by Food and Drug sort of conveys the impression 

that you could take a nice, good, wholesome American candy bar 

as it is made today or a piece of confectionery and do away with 

the butter, and the eggs, and the chocolate, and the n ut meat, and all 

the things tha t are in it today and some day make a candy bar that
22 USE OF ADDITIVES IN CONFECTIONERY

is composed of talc, and believe me, gentlemen, this wouldn’t be on 

the candy stands for 30 days because nobody would eat it, and I think 

what we are talking about in the use of talc is, if it is a filler, it is 

part of the total mass, not the m ajor portion.

Mr. R ogers of Florida. Yes. I notice th at in their letter that you 

have included in your statement they say on page 2:

We have also encountered consignments of candy made with talc and have 

uniformly proceeded against such lots und er the a uth ority of the pre sen t section 

402 (d).

Do you know whether talc is permitted to be used in other foods ?

Mr. H eide. If it is safe under th e law, yes.

Mr. Rogers of Florida. That is rig ht; it would seem to indicate 

tha t they have moved against any candy tha t included talc.

Mr. Heide. If talc is safe but nonnutritive they move against it 

under the law, 402(d).

Mr. Rogers of Florida. But you feel tha t the food additive law 

would fully cover this situation because if i t were not safe they could 

move against it?

Mr. Heide. Yes, sir.

Mr. Rogers of Florida. But they couldn’t move against it simply 

because it was not nutritive.

Mr. Heide. No, sir.

Mr. Rogers of Florida. If we make the change.

Mr. Heide. If you make the change.

Mr. Rogers of Florida. Does a nonnu tritive substance mean it 

doesn’t have very many calories ?

Mr. Heide. I th ink under strict interpretatio n “non nutritive” means 

it has no calories.

Mr. Rogers of Florida. That might be added incentive for people 

to eat more candy, might it not ? It might in my case.

Mr. Heide. I don’t believe tha t the nonnutritive-----

Mr. Rogers of Florida. Constitutes that much.

Mr. Heide. I s that important ?

Mr. Rogers of Florida. I am very sympathetic to your problem, and 

I th ink the industry is being treated unfairly.

Mr. Heide. Thank you.

Mr. Rogers of Florida. Thank you. Thank you, Mr. Chairman.

Mr. Roberts. I thank the gentleman. The gentleman from Minnesota ?

Mr. Nelsen. One question only. Is it possible, if th is relaxation in 

the procedure is permitted, tha t we would get a candy where, for 

example, volume has been achieved by some additive that may be nonnutritive, but simply to create volume and perhaps flavor to sell something of little value ? Is that possible ?

Mr. Heide. I just don’t see it. I have been in the industry for 33 

years and I have a broad knowledge of the industry in general. I 

am not a technical person. I have been aware of the nonnutritive 

problem as fa r as all of our industry is concerned, but, again, the consuming public is very discriminating. They have never had a finer 

variety of food products to choose from in all segments of the food 

industry, and all you have to do to be convinced of tha t is to go into 

your local supermarket, so the man who doesn’t produce a good quality product, tha t is not delivering good value to the consumer, doesn’t 

stay in the marketplace very long.
USE OF ADDITIVES IN CONFECTIONERY 23

Mr. Nelsen. I wish to thank you for your statement and I would 

like to also say this: Tha t it seems to me it is now an admitted fact 

by the Department t ha t some change needs to be made, and I want to 

thank you for your fine statement which will be very helpful to the 

committee. Thank you.

Mr. Heide. Thank you, Mr. Nelsen.

Mr. Schenck. Will the gentleman yield ?

Mr. Nelsen. Yes.

Mr. Schenck. A question was raised here which had something to 

do with the question of testing purely imported candies, setting up 

standards for imported candies. The Food and Drug Adm inistration 

sets up standards for th e efficacy and the purity and side effects and 

everything else of medical supplies th at are made in various countries 

and shipped in here, so they certainly could set up the necessary’ rules 

and regulations, including the necessary manufacturing facilities, to 

cover any imported candy if it is necessary.

Mr. Heide. If I may just say one thing, Mr. Harvey commented on 

some weird, I thin k he referred to them as, confections coming into 

this country during W orld W ar I I and I know that this is absolutely 

the truth. Tha t is why I say the emphasis should be on the facilities 

wdiere these products are produced rather than on quibbling about a 

few nonnutritive materials that would benefit our industry here in this 

country, but during World W ar I I people were desperate to get candy 

wherever they could get it.

We were severely rationed as far as sugar was concerned. We were 

only able to deliver limited quantities, and such candy tha t came out 

disappeared from the counters very quickly, but we did get substantial 

quantities of candy from offshore, from the Caribbean area and places 

like that, and those factories down there where they were making what 

they call slab work, on a slab such as this table, where they would 

spread a nougat—a nougat has some honey in it and honey will 

attrac t the bee—when they had this out on the tables the insects were 

attracted by this smell of the honey in the confectionery and because 

they had windows in the factory bu t they had no screens and they 

had not glass in the windows, the bees came in and they sat on the 

candy and some of these bees were actually left in tha t candy when 

it was packaged and sent into this country.

I state again let’s get to the source of the trouble and let’s get to these 

factories wherever they may be and bring them up to our level. We 

have standards tha t are far ahead of many foreign manufacturers 

and we feel that this is the source of the foreign import problem.

Mr. Schenck. May I ask one other question there ? IIow do you 

make so-called dietetic candy that must be pretty low in caloric content.

Mr. Heide. Dietetic canaies are made from low caloric materials 

and they are identified as such, and I believe that under the law the 

product must be identified so that the purchaser knows that he is buying a dietetic confection and not a regular confection.

Air. Schenck. Just one other observation. It would seem to me 

that I have heard somewhere that chocolate-covered grasshoppers are 

supposed to be very delicious, so I wouldn’t think the bee in the nougat 

to which you referred would make much difference.

Mr. Brotzman. Will the gentleman yield for one question ?

Mr. Nelsen. I guess I have the floor. I yield.
24 USE OF ADDITIVES IN CONFECTIONERY

Mr. Brotzman. I want to be sure I understood one thing in Commissioner Harvey's statement. Would I understand tha t candy which 

came in from a foreign country would not have to be subjected to as 

rigid qualifications as would candy of a domestic manu facturer and 

producer of candy ?

Mr. Heide. I cannot answer tha t question. I think the Department 

could answer that question for you, Mr. Brotzman. I don't know 

exactly what their standards and their tests are on imported confections. I am certain t hat if they contained any harmful ingredients or 

materials they certainly would move right in and do what had to be 

done, but apart from that I am not qualified to answer.

Mr. Brotzman. I realize it would better be directed to the Department. Of course tha t would seem patently unfair, but also unsafe, 

shall we say, if we imposed certain restrictions on domestic producers 

of confectionery but none on producers of confectionery that was 

coming in from abroad. It wouldn't make any sense to me. Well, 

you have the floor.

Mr. Nelsen. Yes. It would seem to me in a shipment of a foreignmade product the big problem is the availability of inspection of the 

plant, the facilities, and physical inspection, and the only way you can 

really determine it is by analysis, which is quite difficult and I suppose 

t ime consuming. Is n’t that correct ?

Mr. Heide. Yes. You could determine, Mr. Nelsen, the quality of 

the product by such examination, but you could not determine the conditions under which the product was made. I believe this gets into 

the area of the State Department and arrangements with other governments permitting such inspections, and I understand it is quite 

complicated.

Mr. Nelsen. Thank you very much.

Mr. Roberts. The gentleman from Texas?

Mr. Pickle. I just wondered what kind of foreign candies are imported? You say some of them are imported in large quantities. 

What, are some of them ?

Mr. Heide. There is a tremendous amount of h ard candy, taffies, the 

pulled candies, mostly wrapped candies. There are considerable quantities of chocolate products tha t come into the country and it is on 

an ever-increasing scale.

The ratio of imports versus our exports is about 6 to 1 on imports 

over our exports.

Mr. Pickle. Where do they come from prim arily; do you know.

Mr. H eide. They come from En gland: they come from It al y; they 

come from many countries. They come from the continent of Europe, 

Switzerland, and Holland also is quite a producer.

Mr. Pickle. Tha t is all, Mr. Chairman.

Mr. Roberts. The gentleman from Colorado?

Mr. Brotzman. Thank you, Mr. Chairman. I will say from what 

I have heard of your testimony and the other testimony here today 

I am receptive to your position. There may be a technical problem 

or two to work out the correct language and the correct bill. I wouldn't 

want to pass judgment on that point as yet.

I do understand that it is your position that the language suggested 

by Mr. Harvey on pages 4 and 5 of his testimony is not acceptable.

Mr. Heide. This added proviso tha t they wish to incorporate?
USE OF ADDITIVES IN CONFECTIONERY 25

Mr. Brotzman. Yes. It starts “provided further.’’

Mr. II eide. I s not acceptable, no.

Mr. R ogers of Florida. Would the gentleman yield ?

Mr. Brotzman. Yes.

Mr. Rogers of Florida. As I understand, you would have no objection to the additional amendment on page 5 which pertains to trinkets.

Mr. Heide. We would not actively oppose it, Mr. Rogers, but we 

feel it is already provided for under the law.

Mr. R ogers of Florida. But you have no objection to this language 

as such, do you ?

Mr. Heide. No strenuous objection; no, sir.

Mr. Roberts. Thank you. Any thing further?

Mr. Brotzman. I have no further questions.

Mr. Roberts. This will conclude the hearing on H.R. 4731. I have a 

statement here I would also like to include, filed by the Corn Industries 

Research Foundation, Inc.

(The statement referred to follows:)

Corn Industries Research Foundation, I nc.,

Washington, D.C., April 27, 196$.

Subject: H.R. 4731, a bill to amend section 402(d) of the Federal Food, Drug, 

and Cosmetic Act.

Hon. Kenneth A. Roberts,

Chairman, Subcommittee on Public Health and Safety,

New House Office Building, Washington, D.C.

Dear Mr. Roberts : The Corn Industries Research Foundation, Inc., and its 

members have a direct interest in H.R. 4731 and support the proposed amendment to the extent tha t it would serve to eliminate the prohibition against the use 

of any nonnutritive article or substance as now provided in section 402(d) of the 

Federal Food, Drug, and Cosmetic Act.

The membership of the foundation consists of producers of corn starch, corn 

sirup, corn sugar, or other corn products manufactured by the wet milling process. 

Its present membership includes all but one of the producers engaged in this 

business in the United States.

While the direct interest of our industry is restricted as indicated, this restriction in our presentation should not be considered in any way as opposing the amendment as proposed. However, it is felt tha t our industry should, in all 

propriety, restrict its comments to the specific problem which it wished to have 

corrected by a suitable revision of section 402(d). We respectfully propose that the words “nonnutritive artic le or substance” be 

deleted from section 402(d) ; or, if not deleted, then that the phrase be at least 

so qualified tha t nonnutritive substances required for technical reasons in the 

preparation of confections be permitted. Our industry’s specific interest in this suggestion lies in the use of mineral 

oil in a type of storch especially prepared for the confectionery industry commonly called molding starch, where it is necessary to add a small amount of 

mineral oil to the starch for the reason and in the manner hereinafter indicated, 

in order to render it suitable for its intended use. Mineral oil is a nonnutritive substance. When following normal commercial 

practices in the use of molding starch, minute quantities of the mineral oil will 

adhere to the confection. The amount of mineral oil which remains in the fin­ ished confection is substantially less than the maximum of 0.6 percent specified 

as being suitable and safe for use in foods, as provided in Food Additive Regulation, section 121.1146, published in the Federal Register for March 12, 1964. 

However, it has been ruled administratively that the presence in confections of even these small amounts of mineral oil, introduced incidentally during the 

process of manufacture, constitutes a violation of the nonnutritive provisions 

of section 402(d).

Our suggested amendment of section 402 (d) would make such use of mineral 

oil lawfu l.
26 USE OF ADDITIVES IN CONFECTIONERY

The following is a more detailed outline of the use of molding starch and the 

need for the use of mineral oil in its preparation :

Mineral oil not in excess of 0.3 percent on a total weight basis is added to corn 

starch to impart the physical characteristics required of starch for making and 

holding impressions for molds of various designs utilized for molding confections, and particularly the various sizes and shapes of chocolate-covered candies. 

Corn starch so treated is commonly identified as “molding s tarch” in the trade. 

It is packaged or bagged by the respective manufacturers and, as so packaged or 

bagged, is shipped to the members of the confectionery industry.

As employed by the confectionery industry, the molding starch is placed on 

trays attached to endless conveyor belts in which it is spread out evenly in the 

powdered form so as to present a level surface. As these filled trays pass along 

the belt, molds necessary to effect the desired impressions are pressed into the 

starch, thus leaving an impression of the size and shape desired for the particular kind of candy to be molded. From there the trays pass on to the filling 

machines which deposit the molten candy mix into the impressions in the starch.

After the candy has had an opportunity to cool and harden, it is removed 

from the molding starch by brushing or by air blast, or by both, and the starch 

thus removed from the trays and the candy is dropped on a return conveyor which 

takes it back to the beginning of the production line for reuse as described. 

Additional quantities of molding starch are added to the production line from 

time to time in order to maintain a constant supply for use in molding candy. 

The supply of molding starch is constantly being conditioned by use of magnetic 

(raps, sifters, driers, and coolers, or like equipment.

Mineral oil in the amount indicated, namely, 0.3 percent on a total weight 

basis in the starch, is added to the corn starch, solely for the purpose of imparting the necessary characteristics to the starch so that it will make and hold the 

desired impression and form so as to insure a firm mold and hence a regular outline and smooth surface for the confection deposited in the impression. It is 

not added for the purpose of imparting, nor does it impart, any characteristics 

whatsoever to the confection molded in the starch as described.

Thus, the only mineral oil which may become a component of the confection 

as the result of having been formed and shaped in the impressions in the molding starch is the infinitesimal quantity which may migrate incidentally from the 

starch which may continue to cling to the confection after cleaning. Good 

manufacturing practices require tha t as much of the molding starch be removed 

from the confection as is practicably possible. Studies have been conducted to 

determine the quantity of molding starch which continues to cling to the confection after the confection has been submitted to the cleaning processes followed 

in good manufacturing practices. Such a study with five different kinds of confections showed that the residue of mineral oil in the finished confection is about 

one-fourth of 1 percent of t hat specified as the maximum allowed for use in foods 

generally by the food additive regulation cited above.

We respectfully request, therefore, tha t section 402(d) of the Federal Food, 

Drug, and Cosmetic Act be amended as we have proposed for the reasons indicated.

Respectfully submitted.

W il l ia m J. H ooves, 

Admin istr ative Vice President.

Mr. Roberts. This will conclude the hearings and the committee will 

stand in recess for consideration of certain matters in executive session.

Mr. Heide. Mr. Chairman, I would also like to take this opportunity 

to thank you for this opportunity of testifying here today. Thank 

you.

Mr. Roberts. Thank you for your appearance.

(Whereupon, at 11:37 a.m., the subcommittee adjourned.)

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