2011-5757. Fur Products Labeling Act

AGENCY:

Federal Trade Commission (FTC or Commission).

ACTION:

Advance notice of proposed rulemaking; request for comment.

SUMMARY:

In December 2010, Congress passed the Truth in Fur Labeling Act (TFLA), which amends the Fur Products Labeling Act (Fur Act) by: (1) Eliminating the Commission's discretion to exempt fur products of relatively small quantity or value from disclosure requirements; and (2) providing that the Fur Act will not apply to certain fur products obtained through trapping or hunting and sold in face to face transactions. TFLA also directs the Commission to review and allow comment on the Fur Products Name Guide (Name Guide). Accordingly, the Commission publishes this Advance Notice of Proposed Rulemaking (ANPR) and request for comment. In addition to seeking comment on the Name Guide, the Commission, as part of its systematic review of all current FTC rules and guides, requests comment on all of its Fur Act regulations (Fur Rules or Rules).

DATES:

Written comments must be received by May 16, 2011.

ADDRESSES:

Interested parties are invited to submit written comments electronically or in paper form by following the instructions in the SUPPLEMENTARY INFORMATION section below. Comments in electronic form should be submitted by using the following Web link: https://ftcpublic.commentworks.com/​ftc/​furrulesreview (and following the instructions on the Web-based form). Comments filed in paper form should be mailed or delivered to the following address: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex O), 600 Pennsylvania Avenue, NW., Washington, DC 20580, in the manner detailed in the SUPPLEMENTARY INFORMATION section below.

FOR FURTHER INFORMATION CONTACT:

Matthew Wilshire, [phone], Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Fur Act and Rules

The Fur Act prohibits misbranding and false advertising of fur products, and requires labeling of most fur products. 15 U.S.C. 69 et seq. Pursuant to this Act, the Commission promulgated the Fur Rules to establish disclosure requirements that assist consumers in making informed purchasing decisions. 16 CFR part 301. Specifically, the Fur Act and Rules require fur manufacturers, dealers, and retailers to place labels on products made entirely or partly of fur disclosing: (1) The animal's name as provided in the Name Guide; (2) the presence of any used, bleached, dyed, or otherwise artificially colored fur; (3) that the garment is composed of paws, tails, bellies, or waste fur, if that is the case; (4) the name or Registered Identification Number of the manufacturer or other party responsible for the garment; and (5) the garment's country of origin. 15 U.S.C. 69b(2); 16 CFR 301.2(a). In addition, manufacturers must include an item number or mark on the label for identification purposes. 16 CFR 301.40. The Fur Rules also provide requirements for advertising fur products. 16 CFR 301.38. Finally, to assist the Commission in enforcing these requirements, the Rules contain recordkeeping requirements. 16 CFR 301.37; 301.41.

Prior to amendment by TFLA, the Fur Act authorized the Commission to exempt fur products of “relatively small quantity or values from labeling requirements. 15 U.S.C. 69(d). Exercising this soon-to-expire authority, the Fur Rules contain a de minimis exemption” that provides:

If the cost of any fur trim or other manufactured fur or furs contained in a fur product, exclusive of any costs incident to its incorporation therein, does not exceed one hundred fifty dollars ($150) to the manufacturer of the finished fur product, or if a manufacturer's selling price of a fur product does not exceed one hundred fifty dollars ($150), and the provisions of paragraphs (b) and (c) of this section are met, the fur product shall be exempted from the requirements of the Act and Regulations in this part. * * * 16 CFR 301.39(a).

Thus, prior to TFLA's effective date, retailers can lawfully sell garments containing fur or fur trim with a component value of $150 or less without a fur-content label.

B. TFLA

On December 18, 2010, the President signed TFLA into law. That Act contains two amendments to the Fur Act. First, it eliminates the provision in Section 2(d) of the Fur Act that empowered the Commission to exempt fur products “of relatively small quantity or value of the fur or used fur contained therein 15 U.S.C. 69(d). This amendment is effective 90 days from TFLA's enactment—March 18, 2011. Public Law 111-113, § 2. Second, TFLA provides a new exemption for furs sold directly by trappers and hunters to end-use customers in certain face-to-face transactions (“hunter/trapper exemptions):

No provision of [the Fur Act] shall apply to a fur product—(1) the fur of which was obtained from an animal through trapping or hunting; and (2) when sold in a face to face transaction at a place such as a residence, craft fair, or other location used on a temporary or short term basis, by the person who trapped or hunted the animal, where the revenue from the sale of apparel or fur products is not the primary source of income of such person. Pub. L. No. 111-113, § 3.

TFLA also directs the Commission to initiate a review and opportunity to comment on the Name Guide. TFLA gives the Commission 90 days from enactment to commence the review.

II. Future Rule Amendments

TFLA's amendments will require conforming changes to the Fur Rules. Specifically, there will no longer be a statutory basis for the Fur Rules' de minimis exemption, and previously exempted fur products will require labels. Therefore, the Commission must delete the exemption from its Rules. In addition, the Commission will propose revisions making clear that the Fur Rules do not apply to products covered by TFLA hunter/trapper exemption.

Accordingly, the Commission will issue a Notice of Proposed Rulemaking that will propose changes in light of TFLA and may propose other changes in response to comments solicited by this document. Meanwhile, fur products previously covered by the de minimis exemption will be subject to the Fur Act's disclosure requirements, as of March 18, 2011, even though the exemption will remain in the Fur Rules until the Commission issues final amendments. Congress has rescinded the Commission's authority to exempt such products, and, therefore, there is no longer a legal basis for the de minimis exemption.

III. Regulatory Review Program

In light of TFLA's directive, and consistent with the Commission's policy to periodically review its rules and guides, the Commission solicits comments on the Fur Rules in general and the Name Guide in particular. In addition to comments regarding the Name Guide, the Commission seeks comment on, among other things, the economic impact of, and the continuing need for, the Fur Rule provisions; the benefits of the Rules to consumers; and the burdens the Rules place on those subject to its requirements. The Commission seeks comment on the specific questions listed below in Section IV.

IV. Request for Comment

The Commission solicits comment on the following specific questions related to the Fur Rules:

(1) Is there a continuing need for the Rules as currently promulgated? Why or why not?

(2) What benefits have the Rules provided to consumers? What evidence supports the asserted benefits?

(3) What modifications, if any, should the Commission make to the Rules to increase their benefits to consumers?

(a) What evidence supports your proposed modifications?

(b) How would these modifications affect the costs and benefits of the Rules for consumers?

(c) How would these modifications affect the costs and benefits of the Rules for businesses, particularly small businesses?

(4) What impact have the Rules had on the flow of truthful information to consumers and on the flow of deceptive information to consumers?

(5) What significant costs have the Rules imposed on consumers? What evidence supports the asserted costs?

(6) What modifications, if any, should be made to the Rules to reduce the costs imposed on consumers?

(a) What evidence supports your proposed modifications?

(b) How would these modifications affect the costs and benefits of the Rules for consumers?

(c) How would these modifications affect the costs and benefits of the Rules for businesses, particularly small businesses?

(7) What benefits, if any, have the Rules provided to businesses, and in particular to small businesses? What evidence supports the asserted benefits?

(8) What modifications, if any, should be made to the Rules to increase its benefits to businesses, and particularly to small businesses?

(a) What evidence supports your proposed modifications?

(b) How would these modifications affect the costs and benefits of the Rules for consumers?

(c) How would these modifications affect the costs and benefits of the Rules for businesses?

(9) What significant costs, including costs of compliance, have the Rules imposed on businesses, particularly small businesses? What evidence supports the asserted costs?

(10) What modifications, if any, should be made to the Rules to reduce the costs imposed on businesses, and particularly on small businesses?

(a) What evidence supports your proposed modifications?

(b) How would these modifications affect the costs and benefits of the Rules for consumers?

(c) How would these modifications affect the costs and benefits of the Rules for businesses?

(11) Provide any evidence concerning consumer perception of the fur names required by the Name Guide. Does this evidence indicate that the Rules should be modified? If so, why, and how? If not, why not?

(12) Provide any evidence concerning whether the Commission should alter the Name Guide to include additional fur names or to eliminate certain names already listed. Does this evidence indicate that the Rules should be modified? If so, why, and how? If not, why not?

(13) What evidence is available concerning the degree of industry compliance with the Rules? Does this evidence indicate that the Rules should be modified? If so, why, and how? If not, why not?

(14) Are any of the Rules' requirements no longer needed? If so, explain. Please provide supporting evidence.

(15) What potentially unfair or deceptive practices concerning the labeling and advertising of fur products, if any, are not covered by the Rules?

(a) What evidence demonstrates the existence of such practices?

(b) With reference to such practices, should the Rules be modified? If so, why, and how? If not, why not?

(16) Should the Rules continue to require that fur products manufactured for use in pairs or groups be firmly attached to each other when delivered to the purchaser-consumer or be individually labeled? Why or why not? Please provide any supporting evidence.

(17) What modifications, if any, should be made to the Rules to account for changes in relevant technology or economic conditions?

(a) What evidence supports the proposed modifications?

(b) How would these modifications affect the costs and benefits of the Rules for consumers and businesses, particularly small businesses?

(18) Do the Rules overlap or conflict with other Federal, State, or local laws or regulations? If so, how?

(a) What evidence supports the asserted conflicts?

(b) With reference to the asserted conflicts, should the Rules be modified? If so, why, and how? If not, why not?

(19) Are there foreign or international laws, regulations, or standards with respect to the fur labeling that the Commission should consider as it reviews the Rules? If so, what are they?

(a) Should the Rules be modified in order to harmonize with these foreign or international laws, regulations, or standards? If so, why, and how? If not, why not?

(b) How would such harmonization affect the costs and benefits of the Rules for consumers and businesses, particularly small businesses?

Interested parties are invited to submit written comments electronically or in paper form. Comments should refer to “Fur Rules Review, Matter No. P074201” to facilitate the organization of comments. We must receive your comment by May 16, 2011. Please note that your comment—including your name and your State—will be placed on the public record of this proceeding, including on the publicly accessible FTC Web site, at http://www.ftc.gov/​os/​publiccomments.shtm.

Because comments will be made public, they should not include any sensitive personal information, such as any individual's Social Security Number; date of birth; driver's license number or other State identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. Comments also should not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, comments should not include “trade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential” as provided in Section 6(f) of the Federal Trade Commission Act (AFTC Act), 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing matter for which confidential treatment is requested must be filed in paper form, must be clearly labeled AConfidential, and must comply with FTC Rule 4.9(c).^[1]

Because paper mail addressed to the FTC is subject to delay due to heightened security screening, please consider submitting your comments in electronic form. Comments filed in electronic form should be submitted using the following Web link: https://ftcpublic.commentworks.com/​ftc/​furrulesreview (and following the instructions on the Web-based form). To ensure that the Commission considers an electronic comment, you must file it on the Web-based form at the Web link https://ftcpublic.commentworks.com/​ftc/​furrulesreview. If this notice of proposed rulemaking appears at http://www.regulations.gov/​search/​Regs/​home.html#home,, you may also file an electronic comment through that Web site. The Commission will consider all comments that regulations.gov forwards to it. You may also visit the FTC Web site at http://www.ftc.gov to read the notice of proposed rulemaking and the news release describing it.

A comment filed in paper form should include the “Fur Rules Review, Matter No. P074201” reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex O), 600 Pennsylvania Avenue, NW., Washington, DC 20580. The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible, because U.S. postal mail in the Washington area and at the Commission is subject to delay due to heightened security precautions.

The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives, whether filed in paper or electronic form. Comments received will be available to the public on the FTC Web site, to the extent practicable, at http://www.ftc.gov/​os/​publiccomments.shtm. As a matter of discretion, the FTC makes every effort to remove home contact information for individuals from the public comments it receives before placing those comments on the FTC Web site. More information, including routine uses permitted by the Privacy Act, may be found in the FTC's privacy policy, at http://www.ftc.gov/​ftc/​privacy.htm.

By direction of the Commission.

Donald S. Clark,

Secretary.

Footnotes

1.  The comment must be accompanied by an explicit request for confidential treatment, including the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. The request will be granted or denied by the Commission's General Counsel, consistent with applicable law and the public interest. See FTC Rule 4.9(c), 16 CFR 4.9(c).