[Federal Register Volume 63, Number 161 (Thursday, August 20, 1998)]
[Rules and Regulations]
[Pages 44553-44555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22445]
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FEDERAL TRADE COMMISSION
16 CFR Part 253
Guides for the Feather and Down Products Industry
AGENCY: Federal Trade Commission.
FINAL ACTION: Rescission of the Guides for the Feather and Down
Products Industry; announcement of enforcement policy.
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SUMMARY: On April 15, 1994, the Commission published a Federal Register
notice initiating the regulatory review of the Federal Trade
Commission's (``Commission'') Guides for the Feather and Down Products
Industry (``Guides'') and seeking public comment. On October 28, 1996,
the Commission published a second Federal Register notice seeking
additional information. In the 1996 notice, the Commission indicated
that it had made a preliminary determination to retain but modify the
Guides and sought comment on several issues. The Commission has now
completed its review, and this notice announces the Commission's
decision to rescind the Guides. In addition, the notice provides a
general enforcement policy statement with respect to misrepresentations
concerning feather and down-filled products.
EFFECTIVE DATE: August 20, 1998.
ADDRESSES: Requests for copies of this notice should be sent to the
Consumer Correspondence Center, Room 130, Federal Trade Commission, 6th
St. and Pennsylvania Ave., N.W., Washington, DC 20580. The notice is
available on the Internet at the Commission's website, http://
www.ftc.gov.
[[Page 44554]]
FOR FURTHER INFORMATION CONTACT: Alice Au, Attorney, Federal Trade
Commission, New York Regional Office, 150 William Street, Suite 1300,
New York, NY 10038, (212) 264-1210 or Carol Jennings, Attorney, Federal
Trade Commission, Division of Enforcement, 6th St. and Pennsylvania
Ave., N.W., Washington, DC 20580, (202) 326-3010.
SUPPLEMENTARY INFORMATION:
I. Introduction
The Guides for the Feather and Down Products Industry addressed
claims for the advertising, labeling, and sale of products that are
wholly or partially filled with feathers or down, and all bulk stocks
of processed feathers or down intended for use or used in the
manufacture of such products. The Guides specifically addressed, among
other things, the use of trade names, symbols, and depictions; the
tolerances for filling material; and the cleanliness of filling
material.
As part of the Commission's ongoing review of all current
Commission rules and guides, the Commission published a Federal
Register notice on April 15, 1994, 59 FR 18006, seeking comments about
the regulatory and economic costs and benefits of the
Guides.1 The Commission published a second notice on October
28, 1996, 61 FR 55589, setting forth a preliminary determination to
retain the Guides and seeking comments on several issues. Of particular
interest in this review proceeding was the issue of tolerances
recognized by the Guides for filling materials in feather and down
products. Section 253.6(f) of the Guides permitted the unqualified term
``down'' to be used to designate a product containing the following
fill mixture:
\1\ Comments received in response to the first Federal Register
notice were discussed in the second Federal Register notice. All of
the comments were from industry, and all supported retaining the
Guides.
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80% Down Portion consisting of
1. 70% down and plumules (minimum)
2. 10% down fiber (maximum)
20% Remainder Portion consisting of (any or all of the following items)
1. Down fiber
2. Waterfowl feather fiber
3. Waterfowl feathers
4. 2% maximum of nonwaterfowl feathers and nonwaterfowl feather fibers
5. 2% maximum residue
This standard created, in effect, a 30% tolerance for the down and
plumules content of down-filled products.
Section 253.6(c) of the Guides addressed percentage down claims.
Section 253.6(c)(1) stated that a product may not be called ``100%
down'' or ``pure'' or ``all down'' unless the product in fact contains
only down without regard to any tolerance. Section 253.6(c)(2) stated
that a product ``should not be represented to contain a certain
percentage of feathers or down unless it in fact contains the stated
percentage with due regard to the tolerances set forth in this
section.'' The same section of the Guides stated in paragraph (f) that
``[t]he tolerances . . . are not to be construed to permit intentional
adulteration.''
All of the comments to the second Federal Register notice supported
retaining the Guides to maintain quality and an industry
standard.2 In general, the commenters recommended preserving
the Guides ``as is'' with suggestions that the Commission make small
changes to various allowances permitted by the Guides. None of the
comments addressed the Commission's concerns regarding deception and
competition.
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\2\ The Commission's second request for public comment elicited
nine comments from the industry and none from consumers or consumer
groups: (1) J.C. Penney Company, Inc., (2) Blue Ridge Home Fashions,
Inc., (3) The Canadian Down and Feather Products Association, (4)
Pillowtex Corporation, (5) Pacific Coast Feather Company, (6)
American Down Association, (7) International Down and Feather
Testing Laboratory, (8) Eurasia Feather Inc./Down Inc., and (9)
Hollander Home Fashions Corp. These comments are on the public
record and available for viewing in Room 130 at the Federal Trade
Commission, 6th Street and Pennsylvania Avenue, N.W., Washington,
D.C. 20580, from 8:30 am to 5 pm, Monday-Friday.
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After extensive review of the Guides and their effect on the
feather and down industry, the Commission has decided that the Guides
have not promoted compliance with Section 5 of the FTC Act 3
and in fact may have hindered compliance. For the reasons set forth
below, the Commission has concluded that consumers would be better
served by rescission of the Guides.
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\3\ Section 5 of the FTC Act, 15 U.S.C. 45(a)(1) states:
``Unfair methods of competition in or affecting commerce, and unfair
or deceptive acts or practices in or affecting commerce, are hereby
declared unlawful.''
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II. Reasons for Rescission of the Guides
The Commission has decided to rescind the Guides for several
reasons. First, the Guides did not appear to be working as intended to
promote truth in labeling and advertising. The Guides' tolerances were
intended to accommodate the imprecise nature of processing and
manufacturing and were ``not to be construed to permit intentional
adulteration.'' Section 253.6(f). Instead, the 30% tolerance afforded
by the Guides appears to have become an industry manufacturing
standard, not simply a margin for error. The Commission understands
that a filling material at the edge of the tolerance for the stated
down content, i.e. containing 30% less down than its stated down
content, is referred to in the industry as ``FTC down.'' The fact that
the Guides have resulted in the situation where products contain 30%
less down than stated suggests that the Guides did not promote truth in
labeling or advertising and should be rescinded.
Second, it appears that the Guides were confusing to industry
members attempting compliance. For example, FTC staff has received
queries from industry members who know the exact composition of a
product's filling contents, based on lab analysis, but nonetheless
inquire how the product should be labeled under the FTC's tolerances.
This situation suggests that rather than creating clarity, these Guides
have caused confusion in this industry.
Third, the Guides set forth detailed standards that can be better
established by private standards-setting organizations or others with
expertise in technical measurement issues and industry practices.
Market forces may also effectively set standards as long as the fill
mixture is truthfully disclosed.
Fourth, the Guides' content disclosure principles may have had
unintended anticompetitive effects, distorting consumer demand and
related production decisions. Because manufacturers of 70% down
products could advertise and label their products as ``down,''
manufacturers of competing products with significantly greater down and
plumules content could not readily distinguish their products. For
example, if a product were advertised and labeled ``85% down and
plumules,'' it might appear inferior to a product labeled ``down.'' As
a result, down product producers were unlikely to bear the increased
cost to bring higher down content products to market, and consumers
were denied access to some down products that they otherwise might
choose.
Fifth, the Guides provided unwarranted special treatment not given
to other industries. In particular, a 30% tolerance for percentage
claims appears overly generous when compared to the 3% tolerance for
blended fiber claims afforded by the Rules and Regulations under the
Textile Fiber Products Identification Act.4
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\4\ 16 CFR 303.43 and 303.27, promulgated under the Textile
Fiber Products Identification Act, 15 U.S.C. 70-70k.
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These Guides have not served the general purpose of Guides, which
is to increase industry compliance with
[[Page 44555]]
Section 5 of the FTC Act. Therefore, rescission is appropriate.
III. The Commission's Future Enforcement Policy
The rescission of the Guides does not leave the industry without
guidance as to how to comply with the law. Moreover, it does not signal
an FTC withdrawal from efforts to prevent deception in the labeling and
advertising of these products. The rescission of the Guides does mean,
however, that the FTC will no longer maintain detailed specifications
for the feather and down industry.
In rescinding the Guides, the Commission directs the industry's
attention to the principles of law articulated in the FTC's Deception
Statement and pertinent Commission and court decisions on deception,
both of which are generally applicable to all industries.5
As articulated in the Deception Statement, 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,
to the consumer's detriment.'' 6
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\5\ Cliffdale Associates, Inc., et al., 103 F.T.C. 110, 175
(including Deception Statement as Appendix) (1984).
\6\ Id. at 176.
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Applying these principles, and in the absence of further evidence
of consumer interpretation of unqualified ``down'' claims, the
Commission expects down content to reflect the use of appropriately
calibrated, modern mass production techniques. The Commission
understands that, at the present time, application of those production
techniques should yield down content of more than 70% for products
labeled ``down.'' With respect to percentage down claims, producers of
down products generally have acknowledged that it is quite practicable,
using present production methods, to produce down blend goods having a
down content that is plus or minus 2-5% of a targeted number, rather
than a 30% variation. Other aspects of down product composition
addressed in the former Guides also should be governed by deception
law, market forces, and the application of modern production
techniques.
Rescission of the Guides should provide greater incentives for
industry itself to create effective standards and develop methods of
product differentiation. The Commission hopes that market forces will
foster truthful labeling and advertising practices. Industry members
are encouraged to be vigilant in monitoring both their own and their
competitors' practices. If, in the future, deceptive practices prove to
be a problem in this industry, further FTC enforcement actions may be
warranted.
List of Subjects in 16 CFR Part 253
Advertising, Labeling, Filling Material, Trade Practices.
PART 253--[REMOVED]
The Commission, under authority of sections 5(a)(1) and 6(g) of the
Federal Trade Commission Act, 15 U.S.C. 45(a)(1) and 46(g), amends
Chapter I of Title 16 of the Code of Federal Regulations by removing
part 253.
By direction of the Commission.
Benjamin I. Berman,
Acting Secretary.
[FR Doc. 98-22445 Filed 8-19-98; 8:45 am]
BILLING CODE 6750-01-P
