[Federal Register Volume 64, Number 205 (Monday, October 25, 1999)]
[Rules and Regulations]
[Pages 57372-57374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27783]
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FEDERAL TRADE COMMISSION
16 CFR Part 241
Guides for the Dog and Cat Food Industry
AGENCY: Federal Trade Commission.
ACTION: Recession of the Guides for the Dog and Cat Food Industry;
announcement of enforcement policy.
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SUMMARY: On March 18, 1999, the Commission published a Federal Register
document initiating the regulatory review of the Federal Trade
Commission's (``Commission'' or ``FTC'' Guides for the Dog and Cat Food
Industry (``Dog and Cat Food Guides'' or ``Guides'') and seeking public
comment. The Commission has now completed its review, and this document
announces the Commission's decision to rescind the Guides.
EFFECTIVE DATE: October 25, 1999.
ADDRESSES: Requests for copies of this document should be send to the
Consumer Response Center, Room 130, Federal Trade Commission, 600
Pennsylvania Avenue NW, Washington, DC 20580. The document is available
on the Internet at the Commission's website. http://www.flc.gov.
[[Page 57373]]
FOR FURTHER INFORMATION CONTACT: Jock Chung, Attorney, Federal Trade
Commission, Division of Enforcement, 600 Pennsylvania Avenue NW, S-
4302, Washington, DC 20580, (202) 326-2984, e-mail jchung@flc.gov.>.
SUPPLEMENTARY INFORMATION: .
I. Introduction
The Dog and Cat Food Guides address claims about food for dogs or
cats, including dry, semimost, frozen, canned, and other commercial
foods manufactured or marketed for consumption by domesticated dogs or
cats, as well as claims about special candy for dogs and cats, but not
claims about animal medicines or remedies. The Guides apply to
``industry members,'' defined as any person, firm, corporation, or
organization engaged in the importation, manufacture, sale or
distribution of dog or cat food. In summary, the Dog and Cat Food
Guides advise against:
(1) Misrepresenting dog or cat food in any material respect; for
example, misrepresenting the composition, form, suitability,
quality, color, flavor of any dog or cat food; misrepresenting that
any dog or cat food meets the dietary or nutritional needs of dogs
and cats; or misrepresenting that any dog or cat food will provide
medicinal or therapeutic benefits;
(2) Misrepresenting that any dog or cat food is fit for human
consumption or has been made under the same sanitary conditions as
food for humans;
(3) Misrepresenting the processing methods used in the
manufacture or processing of any dog or cat food;
(4) Making false statements about the conduct of competitors or
about the quality of competitors' products;
(5) Misrepresenting the length of time a dog or cat food company
has been in business, its rank in the industry, or that it owns a
laboratory or other testing facilities;
(6) Using deceptive endorsements or testimonials, or deceptively
claiming that any dog or cat food has received an award;
(7) Offering for sale any dog or cat food when the offer is not
a bona fide effort to sell the product so offered as advertised and
at the advertised price;
(8) Failing to include details, such as the manner in which the
guarantor will perform and the identity of the guarantor, for all
guarantees, or warranties offered for dog or cat food; and
(9) Misrepresenting the price at which any dog or cat food may
be purchased.
As part of the Commission's ongoing review of all current
Commission rules and guides, the Commission published a Federal
Register notice on March 18, 1999, 64 FR 13368, seeking comments about
the Guides' overall costs and benefits, and the continuing need for the
Guides. The Commission received six comments in response.\1\
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\1\ The Commission's request for public comment elicited six
comments from industry, educational, and regulatory entities, and no
comments from consumers or consumer groups: (1) American Feed
Industry Association; (2) State of Delaware Department of
Agriculture; (3) American Pet Products Manufacturers Association,
Inc.; (4) Pet Food Institute; (5) University of Minnesota College of
Veterinary Medicine; and (6) Division of Animal Feeds of the Food
and Drug Administration's Center for Veterinary Medicine. These
comments are on the public record in file number P994242 as document
numbers B25346100001 through B25346100006, and are available for
viewing in Room 130 at the Federal Trade Commission, 600
Pennsylvania Avenue NW., Washington, DC 20580, from 8:30 AM to 5 PM,
Monday-Friday.
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One comment, from the American Pet products Manufacturers
Association, Inc., favors eliminating the Guides. It suggests that the
Association of American Feed Control Officials (``AAFCO'') \2\ Model
Pet Food Regulations (AAFCO Model Regulations) now act as ``an
authoritative guide for regulator to review labels.'' It further
suggests that elimination of the guides will eliminate confusion, and
notes that ``dog and cat food manufacturers are compelled to conform to
general truth in advertising standards set by FTC for all consumer
goods.''
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\2\ AAFCO is an association open to officials or employees of
any state, dominion, federal, or other governmental agency
responsible for ``regulating the production, labeling, distribution,
or sale of animal feeds or livestock remedies.'' Among other things,
AAFCO promotes uniform laws, regulations, and enforcement policies
by creating model regulations, including Model Pet Food Regulations
setting requirements for pet food labels. At present, AAFCO has
representatives from agencies in all fifty states and Puerto Rico,
as well as from Canada and federal agencies.
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The remaining five comments support retaining the Guides. In
general, these comments suggest that the Guides are useful in providing
guidance and setting standards for dog and cat food advertising, while
the AAFCO Model Regulations, and the individual state regulations
patterned after the AAFCO Model Regulations, are limited to setting
standards for pet food labeling. These comments further generally
suggest that the Guides impose minimal costs because they ``are
essentially similar to other regulations.''
After carefully reviewing the comments and the Guides, the
Commission has concluded that the Guides no longer are needed. The
Commission, therefore, has determined to rescind the Dog and Cat Food
Guides. In the following part of this notice, the Commission explains
its decision o rescind the Guides, and provides guidance to industry
members, who must continue to comply with the Federal Trade Commission
Act (``FTC Act''), 15 U.S.C. 41-58, when labeling and advertising dog
and cat food.
II. Reasons for Rescission
The purpose of guides is to assist industry members in complying
with the FTC Act, and especially with Section 5 of the FTC Act, 15
U.S.C. 45(a)(1), which prohibits ``unfair or deceptive acts or
practices in or affecting commerce.'' Guides are particularly useful
when they resolve uncertainty over what claims are likely to be
considered deceptive. The current Guides, however, in many sections
only advise against making misrepresentations on various subjects and
thus do not elaborate on the requirements of section 5 in a meaningful
way. Except for topics also addressed by pet food model regulations
drafted by AAFCO or animal food regulations issued by the Food and Drug
Administration (``FDA''), the Guides do not provide substantial
guidance regarding what specific claims the Commission is likely to
find deceptive.
The AAFCO Model Regulations provide detailed requirements for
labeling pet food, including dog and cat food.\3\ For example, the
Model Regulations contain detailed feeding protocols for proving growth
claims for dog foods and for cat foods, and define various terms used
to advertise pet food.\4\ The FDA also has issued regulations covering
animal food labeling, 21 CFR Part 501. These regulations contain
detailed requirements for the labeling of packaged animal foods,
including pet foods. Portions of these regulations can also provide
guidance to industry members about, for example, the terminology to be
used to identify pet
[[Page 57374]]
foods,\5\ to describe pet food ingredients,\6\ or to describe
flavoring.\7\
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\3\ The AAFCO Model Regulations specify labeling requirements
for pet food (including food for dogs, cats, and other pets). The
Model Regulations require that certain nutritional information
appear on labels, and prohibit a variety of misrepresentations,
e.g., Regulation PF2(f) prohibits graphics or pictures that
misrepresent the contents of the package. The Model Regulations
cover claims about nutrition, ingredients, and product
characteristics, such as that a pet food controls tartar.
\4\ For example, Regulation PF8(b)(1)a. requires that any dog
food product labeled as being ``lean'' must contain no more than 9%
crude fat for products containing less than 20% moisture, no more
than 7% crude fat for products containing 20% or more but less than
65% moisture, and no more than 4% crude fat for products containing
65% or more moisture. Regulation PF8(b)(1)b. places similar
requirements on any cat food product labeled as being ``lean.''
\5\ For example, 21 CFR 501.3(e) requires that the term
``imitation'' be used to identify certain animal foods.
\6\ For example, 21 CFR 501.4(b)(ii)(3) permits concentrated
skim milk or reconstituted skim milk to be referred to as ``skim
milk'' on labels.
\7\ For example, 21 CFR 501.22(a)(3) sets requirements for using
the terms ``natural flavor'' or ``natural flavoring.''
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Several commentators stated that they do not consider the AAFCO
Model Regulations to be sufficient to protect consumers, primarily
because the AAFCO Model Regulations (and state regulations based on the
AAFCO Model Regulations) do not cover advertising. By rescinding the
Guides, however, the Commission is not relinquishing jurisdiction over
the labeling and advertising of dog and cat food. In fact, pet food
labeling and advertising, including labeling and advertising for foods
for pets other than dogs and cats, must still comply with Section 5 of
the FTC Act. In enforcing Section 5, however, the Commission will be
unlikely to challenge advertising claims under the FTC Act that are
consistent with labeling claims that satisfy the requirements of the
AAFCO Model Regulations or the regulations issued by the FDA. As in any
area of policy, the Commission strives to minimize regulatory burdens
on industry by avoiding conflicts with other federal and state
regulatory agencies.
For those topics not addressed by the AAFCO Model Regulations or by
FDA's regulations, the Dog and Cat Food Guides provide only limited
guidance, and do not resolve demonstrated uncertainty regarding what
claims are likely to be deceptive. For example, Secs. 241.3, 241.6,
241.7, and 241.11 of the Guides merely admonish industry members not to
misrepresent various characteristics of dog or cat food.\8\ The
Commission does not believe that it is necessary to retain guides that
simply admonish sellers not to misrepresent various items, especially
when, as here, there is no evidence that sellers to not understand that
such misrepresentations are illegal.
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\8\ Section 241.3, for example, advises industry members not to
misrepresent dog or cat food ``in any . . . material respect.''
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Further, there do not currently appear to be particular areas
covered by the Guides where industry members would have difficulty in
determining whether specific claims are likely to be deceptive. For
example, the Commission believes that industry members should have
little difficulty determining that a representation that a dog or cat
food contains whole fresh milk is likely to be deceptive if it does not
contain whole fresh milk (see 16 CFR 241.5(f)). In addition, industry
members should know, without the Guides, that they should not
disseminate advertising for dog or cat food that contradicts the
labeling on the product (see 16 CFR 241.6(m)). Thus, the Dog and Cat
Food Guides do not appear to clarify specific representations that
likely will be considered deceptive.
Other sections of the Guides dealing with claims beyond dog and cat
food content and nutrition are also unnecessary, for they do not
provide guidance beyond that given in other Commission guides. For
example, Secs. 241.15, Bait advertising, and 241.16, Guarantees,
warranties, etc., of the Guides do not give significant guidance beyond
that already contained in the Commission's Guides Against Bait
Advertising (16 CFR 238) and Guides for the Advertising of Warranties
and Guarantees (16 CFR part 239).
For all of these reasons, the Commission has determined to rescind
the Dog and Cat Food Guides.
III. Other Guidance
In rescinding the Guides, the Commission directs the industry's
attention to the principles of law articulated in the FTC's Deception
Statement \9\ and pertinent Commission and court decisions on
deception, both of which are generally applicable to all industries. As
articulated in the Policy Statement on Deception, the Commission ``will
find deception if there is a representation, omission, or practice that
is likely to mislead the consumer acting reasonably in the
circumstances, the consumer's detriment.'' In addition, industry
members are required to possess substantiation for objective claims
made about products.\10\ That is, advertisers must have a reasonable
basis for claims before they are disseminated.
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\9\ Deception Statement, appended to Cliffdale Associates, Inc.,
et al., 103 F.T.C. 110, 175 (1984).
\10\ Policy Statement Regarding Advertising Substantiation, 48
FR 10471 (Mar. 11, 1983), appended to Thompson Medical Co., 104
F.T.C. 648, 839 (1984).
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Therefore, sellers must have competent and reliable evidence to
substantiate objective claims about dog or cat food, such as claims
that dog or cat food provides adequate nutrition or promotes health in
dogs or cats. In this respect, the AAFCO Model Regulations and FDA's
regulations on animal food labeling may provide industry members with
useful guidance. Other tests, research, or information, however, also
might be used by sellers to substantiate claims. Industry members bear
the responsibility of ensuring that such information constitutes
competent and reliable evidence in support of their claims. The
Commission will evaluate the adequacy of substantiation on a case-by-
case basis.
List of Subjects in 16 CFR Part 241
Advertising, Animal food, Foods, Labeling, Pets, Trade practices.
PART 241--[REMOVED]
The Commission, under the authority of Sections 5(a) and 6(g) of
the Federal Trade Commission Act, 15 U.S.C. 45(a) and 46(g), amends
chapter I of title 16 in the Code of Federal Regulations by removing
part 241.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 99-27783 Filed 10-22-99; 8:45 am]
BILLING CODE 6750-01-M
