[Federal Register Volume 61, Number 193 (Thursday, October 3, 1996)]
[Rules and Regulations]
[Pages 51577-51584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25358]
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FEDERAL TRADE COMMISSION
16 CFR Part 24
Guides for Select Leather and Imitation Leather Products
AGENCY: Federal Trade Commission.
ACTION: Final rule; Final Guides for Select Leather and Imitation
Leather Products.
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SUMMARY: The Federal Trade Commission (the ``Commission''), as part of
its periodic review of its rules and guides, announces that it has
concluded a review of its proposed Guides for Select Leather and
Imitation Leather Products (``proposed Guides''), which combined and
amended the provisions of Guides for the Luggage and Related Products
Industry, the Guides for Shoe Content Labeling and Advertising, the
Guides for the Ladies' Handbag Industry and the Commission's Trade
Regulation Rule Concerning Misbranding and Deception as to Leather
Content of Waist Belts. The Commission has decided to adopt the
proposed Guides, modified as discussed below.
EFFECTIVE DATE: The effective date of this rule is December 2, 1996.
FOR FURTHER INFORMATION CONTACT: Susan E. Arthur, Attorney, (214) 767-
[[Page 51578]]
5503, Federal Trade Commission, Dallas Regional Office, 100 N. Central
Expressway, Suite 500, Dallas, Texas 75201.
SUPPLEMENTARY INFORMATION:
I. Background
On September 18, 1995, the Commission rescinded the Guides for the
Luggage and Related Products Industry (``Luggage Guides''), the Guides
for Shoe Content Labeling and Advertising (``Shoe Content Guides''),
and the Guides for the Ladies' Handbag Industry (``Handbag Guides'').
60 FR 48027 (September 18, 1995). On the same day, the Commission
sought public comment on proposed Guides for Select Leather and
Imitation Leather Products. 60 FR 48056 (September 18, 1995). The
proposed Guides combined relevant portions of the three Guides, updated
certain language used in the Guides, and made other modifications to
clarify and streamline the provisions of the Guides. The Commission
included within the coverage of the proposed combined Guides certain
provisions of the Commission's Trade Regulation Rule Concerning
Misbranding and Deception as to Leather Content of Waist Belts, 16 CFR
Part 405 (``Waist Belt Rule'').1
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\1\ The Commission recently repealed the Waist Belt Rule. 61 FR
25560 (May 22, 1996).
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The request for public comment contained questions designed to
assist the Commission in determining whether the proposed Guides should
be expanded in scope and to allow interested parties to apprise the
Commission of any special considerations for their industries. The
questions were as follows:
1. Should the proposed Guides for Select Leather and Imitation
Leather Products be expanded in scope to include other products made of
leather or imitation leather? Such products might include, but are not
limited to, clothing, furniture, watchbands, and equestrian items.
2. Are there special considerations for these or other leather or
imitation leather goods which are not addressed by the proposed Guides?
How could any such special considerations be addressed by the Guides?
II. Comments Received
Nine comments were received in response to this request for public
comment. Additionally, the Commission received two Waist Belt Rule
comments in response to an advance notice of proposed rulemaking
published on September 18, 1995. Previously, the Commission had
received 12 comments in response to its March 27, 1995 Federal Register
notice on the three individual Guides and 10 comments on the Waist Belt
Rule (all but three of the Waist Belt Rule comments were also submitted
in response to the request for comment on the three Guides). Because
the Waist Belt Rule comments concern the same or similar issues as
those under consideration in this proceeding, they have been considered
in this review.
In its September 18, 1995 Federal Register notice, the Commission
addressed the first set of comments on the three Guides and the Waist
Belt Rule, which had been received in response to its March 27, 1995
Federal Register notice. The Commission now addresses the comments
received in response to the September 18, 1995 Federal Register notice
and will refer to the first set of comments where appropriate or
necessary to the discussion.2
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\2\ Comments Received in Response to the March 27, 1995 Federal
Register Notice.
Concerning the Three Guides:
1. Rose E. Kettering (``REK''). Same comment sent regarding
Waist Belt Rule
2. Matt Anderson (``MA''). Same comment sent regarding Waist
Belt Rule.
3. Marilyn Raeth (``MR''). Same comment sent regarding Waist
Belt Rule.
4. James A. McGarry (``JAM''). Same comment sent regarding Waist
Belt Rule.
5. Lenna Mae Gara (``LMG''). Same comment sent regarding Waist
Belt Rule.
6. Linda D. Lipinski (``LDL'').
7. Footwear Industries of America (``FIA'').
8. Leather Industries of America, Inc. (``LIA''). Same comment
sent regarding Waist Belt Rule.
9. Luggage and Leather Goods Manufacturers of America, Inc.
(``LLGMA'').
10. Cromwell Leather Company, Inc. (``CL''). Same comment sent
regarding Waist Belt Rule.
11. Enger Kress (``EK'').
12. Footwear Distributors and Retailers of America (``FDRA'').
Concerning the Waist Belt Rule:
13. Stephen Toso (``ST'').
14. Humphreys, Inc. (``HI'').
15. Enger Kress (``EK2'').
Comments Received in Response to the September 18, 1995 Federal
Register Notice.
Concerning the Proposed Guides:
16. Ecological Fibers, Inc. (``EFI'').
17. Leather Industries of America (``LIA2''). Addendum dated
January 11, 1996 (``LIA3''). Addendum dated January 18, 1996
(``LIA4'').
18. Fried, Frank, Harris, Shriver & Jacobson (``FFHSJ'').
19. Footwear Industries of America (``FIA2''). Addendum dated
January 25, 1996, to Susan Arthur (``FIA3''). Addendum dated January
25, 1996, to Secretary's Office (``FIA4''). Addendum dated January
30, 1996 (``FIA5'').
20. Footwear Distributors and Retailers of America (``FDRA2'').
21. Cromwell Leather Company, Inc. (``CL2'').
22. People for the Ethical Treatment of Animals (``PETA'').
23. Hong Kong Government Industry Department (``HK'').
24. Luggage and Leather Goods Manufacturers of America
(``LLGMA2'').
Concerning the Waist Belt Rule:
24. Humphreys, Inc. (``HI2'').
25. Larry Gundersen (``LG'').
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In conducting this review, the Commission also examined the
European Union Directive 94/11/EC, which applies to footwear. The
Directive has as its objective informing consumers of the contents of
their shoes, which is different from the Guides' aim of preventing
misrepresentation caused by the appearance of leather. However, to
enhance global harmonization, the Commission has, where appropriate,
incorporated some of the concepts of the Directive into the Guides.
A. Comments Concerning the Usefulness of the Guides
The proposed Guides are premised on the Commission's long-standing
position that a product that looks like leather makes an implied
representation that the product is made of leather. The Commission
received a number of comments which indicated a need for the Guides.
One comment, however, stated that the proposed Guides are at odds with
current Commission law and policy and urged the Commission to abandon
the Guides as they apply to shoes and boots.3 This comment also
said that the proposed Guides convert silence about shoe content into
an ``appearance of leather'' misrepresentation and then require
disclosure to cure that misrepresentation.
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\3\ FDRA2, #20 at 2.
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Specifically, the Footwear Distributors and Retailers of America
argues that the proposed Guides deal with conduct that is not
prohibited under modern FTC deception law. The association cites
International Harvester Co., 104 F.T.C. 949 (1984), as setting forth
the circumstances under which the Commission will apply deception
theory to omissions: (1) where the seller fails to disclose information
necessary to prevent an affirmative statement from creating a
misleading impression, and (2) where the seller remains silent under
circumstances which constitute an implied but false representation.
International Harvester, however, also states that a deceptive omission
can arise from the physical appearance of a product, and cites as
authority a case in which the Commission upheld charges against a
seller who failed to disclose that a simulated wood product was
actually paper. Haskelite Mfg. Corp., 33 F.T.C. 1212, 1216 (1941),
aff'd, 127 F.2d 765 (7th Cir. 1942). The proposed
[[Page 51579]]
Guides are designed to correct the same type of omission as that in
Haskelite. Both cases provide support for the underlying premise of the
Guides.
The Footwear Distributors and Retailers of America also cites
Thompson Medical, 104 F.T.C. 648, (1984), aff'd, 791 F.2d 189 (D.C.
Cir. 1986), cert. denied, 479 U.S. 1086 (1987) and Leonard Porter, 88
F.T.C. 546, (1976), as support for the proposition that a product
appearing to be leather does not make an implied representation
concerning the material from which the product is made. In Thompson
Medical, the Commission said that if an initial review does not permit
it to conclude with confidence that an implied message exists, it will
not find the implied claim unless extrinsic evidence (consumer surveys,
expert testimony) allows it to conclude that such a reading is
reasonable. In Leonard Porter, the Commission found that consumers
would not generally assume that certain souvenirs were handmade in
Alaska by natives. The Commission said that, simply from the appearance
of the items, it could not conclude that the items possessed the
capacity to deceive as to their origin and method of manufacture.4
With regard to the appearance of leather and the potential resulting
content representation created by that appearance, however, a visual
examination of the item is sufficient to determine whether a
representation is made. Extrinsic evidence is unnecessary to determine
the existence of the claim.
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\4\ The Commission also said that complaint counsel's extrinsic
consumer evidence did not appear to be representative either of
current conditions or of any substantial segment of consumers and
did not support a need for disclosures.
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The Footwear Distributors and Retailers of America comment also
expresses a belief that new high-tech synthetics are far superior to
the synthetics used in the early 1960's, ``offering the appearance,
comfort, breathability, durability, and other qualities that are
comparable or superior to leather.'' The organization believes that the
performance and value of the shoe, not the materials used, drive
consumer choice. Further, Footwear Distributors and Retailers of
America states that consumers do not assume that footwear is made of
leather nor do they care about the exact materials used in shoes.
The Commission believes that leather content representations likely
are material to consumers. Two consumers who responded to the first
request for comment indicated a belief that imitation leather, when
used in shoes, may cause feet to sweat excessively.5 Another
stated that animal lovers, vegetarians and others who do not wish to
wear leather need to know what they are buying.6 Two other
comments from the first set of comments indicated that the requirements
of the Guides assist consumers in making purchasing decisions.7
Although the Footwear Distributors and Retailers of America comment
contends that these consumer comments are anecdotal evidence which
should be rejected, the Commission believes that they demonstrate a
desire on the part of consumers to be informed of the nature of a
product and that this desire is common to a substantial number of
consumers.
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\5\ REK, #1; MA, #2 at 2.
\6\ LMG, #5.
\7\ MR, #3 and JAM, #4.
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It seems likely that the appearance of leather in a synthetic
material may be a representation that the product is leather. Further,
price or other factors are unlikely to signal to consumers that a
product which appears to be leather is not.8 Products made from
synthetics that look like leather, especially synthetic athletic shoes,
are often priced the same as similar products made of leather.
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\8\ In contrast, consumers are unlikely to confuse a gold-toned
product with real gold when the ``pretender'' sells for a fraction
of the amount that gold items typically cost.
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In addition, the Guides trigger disclosures for non-leather
materials only when a product appears to be leather and is not. Many
synthetics are intentionally made to simulate the look of leather,
apparently because many consumers prefer leather. Other synthetic
products, however, are clearly and visibly synthetic, and for such
products disclosure requirements would not be triggered. Thus, the
application of the Guides is properly limited to situations where
consumers are likely to be misled about a product's true composition.
In sum, it seems likely that that the appearance of leather in a
non-leather product constitutes a representation that a product is
leather. Consumers have come to rely upon the information provided
pursuant to the Guides, and if the Commission did not adopt the
proposed Guides, it is likely that confusion in the marketplace would
result.
B. Comments Concerning Products Covered by the Guides
The request for comment on the proposed Guides contained questions
related to (1) expansion of the Guides to include other types of
products made of leather or imitation leather and (2) any special
considerations for such products not addressed by the proposed Guides.
For the reasons discussed below, the Commission has decided not to
expand the Guides to cover additional types of products.
A number of comments received in response to the first Federal
Register notice concerning the three individual Guides addressed the
expansion issue. One comment said that a single set of guides should
cover all leather-using industries.9 Another stated that the
Guides could be generalized to many, if not all, industries.10
Leather Industries of America suggested that a set of leather
definitions be developed to apply to all finished goods.11 The
Luggage and Leather Goods Manufacturers of America stated, however,
that it did not endorse combining the Guides because of the special
circumstances in other industries.12 None of the second set of
comments concerning the proposed Guides expressed any views on whether
the Guides should be expanded to include additional products.
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\9\ CL, #10 at 1.
\10\ EK, #11 at 2.
\11\ LIA, #8 at 4-5.
\12\ LLGMA, #9 at 2.
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Other than the request for special consideration of footwear
contained in the Footwear Distributors and Retailers of America comment
discussed above, only one comment from the second set of comments
requested any special consideration for certain products. This comment
came from a company which supplies paper and cover products to the
bookbinding and looseleaf industry. The comment requested an exclusion
for material thinner than 10/1000th of an inch, provided that the
material is identified by some name which indicates the presence of
non-leather ingredients (the company suggests the term ``reinforced
bonded leather'') and that the material is used as covering
material.13 No such exclusion has been incorporated into the
Guides as adopted. The leather appearance of the product, rather than
its thickness, makes a representation to consumers. Further, as
addressed below, use of the term ``bonded leather'' is sanctioned by
the proposed Guides, provided that appropriate disclosures are made.
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\13\ EFI, #16 at 2.
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While there are some arguments for broadening the Guides, they are
not compelling. The record developed during this review does not
provide sufficient support to justify expansion of the Guides. There
are still many unanswered questions regarding the extent to which
misrepresentations are made in other industries, how
[[Page 51580]]
consumers would interpret the appearance of leather for products in
other industries, and whether there are special considerations for
other industries. Thus, the Commission has decided that the Guides
should not be expanded to cover additional products.14
Nevertheless, all industries which utilize leather and imitation
leather can obtain valuable guidance from the Guides. Because the
Guides are interpretive of laws enforced by the Commission, these
industries may obtain useful information from the Guides even though
they are not specifically covered. Further, although other industries
may not be within the coverage of the Guides, the Commission is in no
way prevented from otherwise taking action against a company engaged in
deceptive omissions.
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\14\ The provision concerning the scope of the Guides is
modified in that the term ``footwear'' is substituted for the
enumeration of footwear items.
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C. Suggested Changes to the Guides
A number of the comments received in response to the second request
for comment suggested that certain changes be made to the proposed
Guides. Generally, these suggestions fall into the following
categories: (1) Use of the term ``Leather,'' (2) Multi-material Shoes,
(3) Disclosure Requirements, (4) Concealed Innersoles, (5) Use of the
term ``Bonded Leather,'' (6) Use of the term ``Waterproof,'' and (7)
Deletion of Unnecessary Provisions.
1. Use of the Term ``Leather''
Split leather is the leather which results from the splitting of
hides or skins into two or more thicknesses, other than the grain or
hair side. Top grain leather is the grain or hair side. As published
for comment, the proposed Guides provided for use of the term
``leather'' only when the material is top grain leather. Originally,
the distinction was retained because of apparent differences between
the performance and appearance of top grain leather and that of split
leather, as well as possible consumer expectations with regard to these
materials. Upon further consideration, the Commission has decided that
the term ``leather'' would also be appropriate for split leather
products.
The European Union Directive 94/11/EC, which applies to footwear,
allows split leather to be called ``leather'' without
qualification.15 For this reason, two comments from the first set
of comments urged that the Guides be amended to allow split leather to
be called ``leather.'' 16 The comments suggested that
technological advances have resulted in a split leather which is
superior to that produced years ago. In support of preservation of the
Guides' distinction between top grain and split leather, however, one
of the first set of comments stated that split grain is less expensive,
less attractive, and less durable than top grain leather, and that
split leather is subject to ``crocking.'' 17 Another of that set
of comments stated that the Guides should continue to permit only top
grain leather to be called ``leather'' or ``genuine leather'' and that
other forms of leather should include qualifying words.18
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\15\ Under the European Union directive, leather which has a
surface coating thicker than 0.15 mm cannot be called ``leather.''
Leather with a surface coating which does not exceed one third of
the thickness of the material but is greater than 0.15 mm must be
referred to as ``coated leather.'' The proposed Guides do not
address coating materials because such materials were not addressed
in the original Guides, and there is insufficient record evidence
regarding practices in the United States upon which to base guidance
about coatings.
\16\ LIA, #8 at 4; FDRA, #12 at 3. FDRA restated this position
in its second comment.
\17\ FIA, #7 at 2. The comment stated that crocking is the
transfer of color from the surface of a colored material to an
adjacent area of the same material or to another surface,
principally by rubbing. In its second comment, Footwear Industries
of America again supported qualification of split leather because of
differences in the performance and appearance of split leather and
top grain leather.
\18\ CL, #10 at 1.
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One of the second set of comments reasoned that top grain leather
is in fact a split--albeit the top grain split--of a cowhide or sheep-
skin.19 Further, the comment stated that top grain leathers are
noted for their exceptionally low tear strength and structural
weakness. The comment also said that it could be argued that there is
no application where splits could not visually and physically replace
or substitute top grain leathers, but that the reverse would not apply.
The commenter stated that for use on the products its client
manufactures, appointment books and diaries, splits are preferable for
their strength characteristics and their blemish-free surface. Since
these products are enhanced by use of split leather, the comment states
that it would not be unfair or deceptive to represent that the products
are leather, but that it would detract from the marketing of the
products to refer to them as anything other than leather.20
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\19\ FFHSJ, #18 at 1.
\20\ Alternatively, the comment requested a clarification of the
scope of the Guides to make clear that the Guides do not apply to
the company's products.
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Rather than relying upon the performance characteristics of split
leather and top grain leather, the Commission believes that consumer
understanding and the messages conveyed to consumers should be the
focus in deciding whether to permit use of the term ``leather'' to
describe split leather. Footwear Distributors and Retailers of America
commented that there is no reason to assume that consumers distinguish
between top grain and split leather.21 Another comment requested
modification of the proposed Guides to accurately reflect consumer
acceptance of split leather.22 The Commission believes that it is
reasonable to assume that consumers do not perceive a distinction
between ``leather'' and ``split leather'' and that consumers do not
assume that ``leather'' means only ``top grain leather.'' Indeed, the
relevant definition of leather is the ``dressed or tanned hide of any
animal, usually with the hair removed.'' 23 If the Guides are
modified to allow split leather to be called ``leather,'' manufacturers
of top grain leather would be free to label their products as ``top
grain leather'' if they so choose. It is likely that a number of top
grain leather product manufacturers already label their products in
this manner. If consumers are aware of any difference in the quality of
various types of leather, the term ``top grain'' will likely convey
more useful information to consumers than will the term ``split.''
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\21\ FDRA2, #20 at 3.
\22\ FFHSJ, #18 at 1.
\23\ The American Heritage Dictionary, Houghton Mifflin Company,
Third Edition (1992).
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Based on the European Union position on split leather and the
representation that the Commission believes is made to consumers by use
of the term ``leather,'' the Commission deletes from the Guides the
provision stating that only top grain leather can be called leather
without qualification. Furthermore, the provision requiring disclosure
of the presence of split leather and other references to the term
``split leather'' are deleted.
2. Multi-Material Shoes
Footwear Distributors and Retailers of America suggested that the
proposed Guides should be more flexible with regard to multi-material
footwear.24 The proposed Guides stated that if all or part of a
shoe is non-leather with the appearance of leather, the general nature
of the material or the fact that the material is not leather should be
disclosed.25 The proposed Guides also stated that a product which
is made principally of leather but which has
[[Page 51581]]
non-leather parts with the appearance of leather may be described as
leather as long as there is a disclosure of the non-leather parts.
Given the current design of footwear, it may have been necessary in
order to comply with the proposed Guides to disclose the composition of
a number of different parts of a shoe. Such a lengthy disclosure may
have been cumbersome to manufacturers and confusing to consumers.
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\24\ FDRA2, #20 at 4.
\25\ Under the proposed Guides as published for comment, the
composition of heels, stiffenings, and ornamentation was not
considered when making the determination of whether a shoe, boot, or
slipper may be called ``leather.''
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The EU Directive on Footwear states that labels shall provide
information on only three parts of a shoe: the upper, the lining and
sock, and the outersole.26 The Commission believes that such a
limitation is appropriate to prevent costly and cumbersome disclosures.
Consequently, a footnote has been added to the Guides indicating that
footwear is considered to be composed of these three parts.
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\26\ The European Union Directive defines these three parts of a
shoe as follows: (1) the upper is the outer face of the structural
element which is attached to the outersole; (2) the lining and sock
are the lining of the upper and the insole, constituting the inside
of the footwear article; and (3) the outersole is the bottom part of
the footwear article subjected to abrasive wear and attached to the
upper.
According to the Directive, labels must disclose the material
which constitutes at least 80% of the surface area of the upper, 80%
of the surface area of the lining and sock, and at least 80% of the
volume of the outersoles. The Guides have not been modified to
conform with the European Union Directive with respect to the 80%
figure.
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Footwear Distributors and Retailers of America suggest allowing use
of a more flexible disclosure if a footwear part is composed of both
leather and non-leather materials. For example, if the majority of the
upper is leather, the following term would be used: ``leather and
manmade upper.'' If leather is not the majority of the material:
``upper of manmade and leather materials.'' Because such disclosures
would inform consumers that the upper of a shoe is not entirely leather
and would prevent deception, a footnote has been added to the Guides
which states that, with regard to footwear, it is sufficient to
disclose the presence of non-leather materials in the upper, the lining
and sock, or the outersole, provided that the disclosure is made
according to the predominance of materials. An example similar to the
one mentioned above has also been added.
3. Disclosure Requirements
People for the Ethical Treatment of Animals stated that its
members, because of their ethical concerns, need labels affixed to
products which accurately identify the material from which the product
is made. The organization suggests that all leather products be labeled
``Animals Suffered to Make This Product'' and that all non-leather
products be labeled ``Cruelty-free Product.'' The aim of the Guides is
to prevent misrepresentation of leather content. The disclosures
provided in the proposed Guides accomplish this goal. The disclosures
suggested by People for the Ethical Treatment of Animals are not
appropriate in the context of the Guides.
4. Concealed Innersoles
The proposed Guides currently state that shoes with visible parts
having the appearance of leather but containing non-leather concealed
innersoles should bear a disclosure of the composition of the
innersoles.27 Initially, the Commission believed that insufficient
evidence of consumer beliefs had been presented to warrant removal of
this provision. On further consideration, however, the Commission now
has decided that disclosure of the composition of concealed innersoles
is not needed.
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\27\ Concealed innersoles are the portion of a shoe hidden
between the liner and the outersole of a shoe.
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Comments from two trade associations addressed this issue. Footwear
Industries of America objected to the Guides' not being limited to
uppers and outersoles, the two main components of a shoe upon which the
association believes consumers base their purchasing decisions.28
The comment said that innersoles are typically covered with a sock
lining or insole sock which conceals the innersole and separates it
from the foot, so consumers are not deceived into thinking it is
leather. Footwear Distributors and Retailers of America argued that the
concealed innersole disclosure should be deleted given the absence of
any empirical evidence that consumers care about concealed
innersoles.29 The comment also said that consumers should not have
any expectations at all about a part of the shoe which is not seen.
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\28\ FIA2, #19 at 1. Footwear Industries of America also made
this argument in its first comment.
\29\ FDRA2, # 20 at 3. In its first comment, the organization
stated that the Guides should not apply to concealed innersoles
because consumers expect that the concealed portions of footwear
bottoms, particularly innersoles, are made of synthetic material.
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Footwear Industries of America stated that leather innersoles do
not guarantee better performance, and that leather is no longer being
used in this manner.30 The comment states that leather innersoles
crack and break during flexing movements due to the effects of
perspiration acids and humidity. The comment also estimates that less
than 1% of the 1.6 billion pairs of shoes sold annually in the U.S.
have a leather innersole, and that most are cellulose board. The
association also provided information to indicate that cellulose board
can outperform leather in a number of respects, including dimensional
stability, porosity, and thermal conductivity.31 The information
provided also indicates that the material is lighter in weight than
leather and has a lower Ph factor than leather.
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\30\ FIA2, #19 at 2.
\31\ FIA5, #19 at 1.
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As discussed above, with regard to footwear, the coverage of the
Guides has been limited to the three main parts of footwear. Therefore,
the provision regarding concealed innersoles has been deleted. A
concealed innersole does not make any implied representation to
consumers and, therefore, no disclosure of the content of concealed
innersoles is necessary.32
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\32\ As indicated above, the European Union Directive does not
apply to concealed innersoles.
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5. Use of the Term ``Bonded Leather''
In drafting the proposed Guides, the Commission considered a number
of comments concerning use of the term ``bonded leather,'' which
generally refers to material made of leather fibers held together with
a bonding agent. Although the original three Guides did not mention the
term ``bonded leather,'' they addressed this type of material, which is
also called ``ground leather,'' ``pulverized leather,'' or ``shredded
leather.'' The Shoe Content Guides and the Ladies' Handbag Guides
allowed either a disclosure stating that the material is simulated or
imitation leather or that the material is ground, pulverized, or
shredded leather. The Luggage Guides stated that an accurate
representation as to the ground, pulverized or shredded leather content
of the material could be made, but that if the material had the
appearance of being leather a disclosure must be made in accordance
with the imitation leather provision of the Luggage Guides. The example
given in the Luggage Guides contains a disclosure that shredded leather
fibers are contained in the material, but that rubber adhesive and
vinyl are also contained in the material. The Luggage Guides provide
that consumers should be made aware of the different components in this
type of material. The history of this issue was considered in drafting
the proposed Guides, which state that if the term ``bonded leather'' is
used (or if similar terms such as ``ground leather,'' ``pulverized
leather,'' or ``shredded leather'' are used), a disclosure of the
percentage of leather fiber and of the
[[Page 51582]]
percentage of non-leather substances contained in the product should be
made.
One of the comments expressed support for the proposed Guides'
treatment of this issue.33 Another comment suggested that this
material should be called ``reinforced bonded leather'' rather than
simply ``bonded leather'' in order to put the public on notice that
there are other ingredients in the material.34 A comment regarding
the Waist Belt Rule suggested that the term ``bonded leather'' should
be permitted to be used unconditionally.35 The Commission
concludes, however, that use of the terms ``bonded leather'' or
``reinforced bonded leather'' without further information is likely to
confuse consumers as to leather content, and the best way to avoid such
confusion is to include the disclosures as provided by the Guides.
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\33\ FIA2, #19 at 1.
\34\ EFI, #16 at 2.
\35\ HI2, #24 at 1.
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Another commenter supported using the term ``bonded leather'' but
did not think the additional content information as provided by the
Guides was the best solution.36 Cromwell Leather believed that a
qualifying word before the term ``leather'' (such as ``bonded'' or
``split'') will keep the Guides simple, yet effective, and suggests
that ongoing education will increase consumer understanding of the
qualifying terms. The comment stated that the proposed Guides'
disclosure requirement for bonded leather will create additional costs
and cause confusion because some manufacturers get bonded leather from
more than one supplier. The company believes there should be a 75%
leather fiber minimum for use of the term ``bonded leather'' (without
further qualification). The comment states that there is widespread
industry agreement on the 75% figure.
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\36\ CL2, #21 at 1.
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As discussed in response to the first set of comments, however,
even if the 75% figure were an industry practice or standard, it would
not prevent deception. In one of the original comments regarding the
Waist Belt Rule, consumer survey evidence was provided in support of
use of the term ``bonded leather.'' 37 The data provided indicates
that some consumers may be misled by use of the term. Further, the term
may be interpreted to mean that the material is of greater quality than
leather,38 or is strengthened or reinforced leather. Without the
qualifying information contained in the Guides, the term ``bonded
leather'' may not inform consumers that non-leather fibers are
contained in the material.
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\37\ HI, #14, part 6.
\38\ EK, #11 at 3 and letter dated February 3, 1964, to the
Commission from counsel for the Tanners' Council of America at 10-
11.
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The ecological benefits of using the term ``bonded leather''
(namely, encouraging the use of leather scrap or recycled leather
fiber) are also addressed in the second set of comments. One of the
comments urges the Commission to reconsider the decision not to require
a minimum leather content for use of the term ``bonded leather''
because ecological benefits are subverted.39 Another comment
urging a minimum threshold for use of the term stated that permitting
any amount of leather fibers to be called ``bonded leather'' may
diminish the use of recycled leather fibers and reverse the ecological
progress the industry has made.40 Whether recycling goals are
affected by use of the term ``bonded leather'' or not, consumers should
be made aware of the contents of such material.
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\39\ LIA2, # 17 at 1.
\40\ CL2, #21 at 2.
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One of the second set of comments urged the Commission to require a
minimum leather content for use of the term ``bonded leather'' since
consumers may not read fine print.41 The Guides already contain a
provision regarding the form of disclosures which should prevent any
``fine print'' from being used to mislead consumers. This provision
states that the disclosures affixed to products and made in advertising
should be conspicuous and clear and should be in close conjunction with
the representation necessitating the disclosure.
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\41\ LIA2, #17 at 1.
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In summary, the Commission believes that consumers should be made
aware of the contents of bonded leather and similar materials. The
Guides' treatment of this issue accomplishes this objective. One change
has been made to the ``bonded leather'' provision. The term
``reconstituted leather'' has been added to the section concerning use
of the terms ground, pulverized, shredded, and bonded leather.
Apparently, this term is often used interchangeably with ``bonded
leather.''
6. Use of the Term ``Waterproof''
A number of comments expressed concern about the provision in the
proposed Guides which relates to the term ``waterproof'' because the
Guides provide for use of the term only if an item is impermeable to
water.42 The comments argue that a product can be waterproof
without being totally impermeable to water. New technology waterproofs
leather by chemically modifying the leather fibers. Use of this
material in footwear allows air molecules to pass through while
preventing larger water molecules from reaching the foot. Total
impermeability is not desirable since the ability of leather to breathe
is a form of permeability. Leather Industries of America proposed the
following modification:
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\42\ LLGMA2, #24 at 1, LIA3, #17 at 1, LIA4, #17 at 1, FIA4, #19
at 1.
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It is unfair or deceptive to:
(a) Use the term ``Waterproof'' to describe all or part of an
industry product unless the designated product or material prevents
water from contact with its contents under normal conditions of
intended use during the anticipated life of the product or
material.43
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\43\ LIA3, #17 at 1. Footwear Industries of America and Luggage
and Leather Goods Manufacturers of America each submitted a somewhat
similar proposal, without reference to the anticipated life of the
product.
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Due to changes in technology and consumer acceptance of the modern
waterproofing methods, the waterproof provision has been modified as
contained in Leather Industries of America's suggestion.
7. Deletion of Unnecessary Provisions
The proposed Guides stated that it is unfair or deceptive to
misrepresent that a product is colored, finished, or dyed with aniline
dye. One of the comments expressed concern about this provision.44
Leather Industries of America stated that ``aniline leather'' is
universally used in the industry in a non-chemical sense to describe
leather that is finished without pigment coverage. The association
believes that the term does not imply that the leather has been dyed
with an aniline dye, only that the finish is clear and contains no
pigment. Because the term ``aniline'' now refers to a clear finish
which allows the surface to be seen, the Commission has removed the
provision in the proposed Guides relating to aniline dye.
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\44\ LIA2 at 1.
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The same provision also deals with misrepresentations that a
product is dyed, embossed, grained, processed, finished, or stitched in
a certain manner. Such misrepresentations would fall within the general
deception provision and do not need to be contained in a specific
provision.
Although no comments were received regarding the ``fictitious
animal'' provision in the proposed Guides, this provision has also been
deleted. Any representation that a product is made from the skin or
hide of an animal that
[[Page 51583]]
does not exist would clearly fall within the general deception
provision of the Guides.
III. Conclusion
A number of changes to the Guides have been made based upon the
second set of comments. The final Guides incorporate the following
modifications:
--The scope of the Guides has been modified to use the term
``footwear'' instead of a list of footwear items, and the term
``footwear'' is used as appropriate throughout the Guides.
--The provision stating that only top grain leather can be called
leather without qualification is modified. The provision requiring
disclosure of the presence of split leather and other references to the
term ``split leather'' have been deleted.
--The provision regarding concealed innersoles has been deleted.
--With regard to footwear, the Guides have been modified to state that
for purposes of the Guides, footwear is composed of three parts: the
upper, the lining and sock, and the outersole. A footnote has been
added which says that with regard to footwear, it is sufficient to
disclose the presence of non-leather materials in the upper, the lining
and sock, or the outersole, provided that the disclosure is made
according to predominance of materials.
--The term ``reconstituted leather'' has been added to the provision
dealing with use of the terms ground, pulverized, shredded, or bonded
leather.
--The provision concerning use of the term ``waterproof'' has been
modified to allow the term to be used if a product or material prevents
water from contact with its contents under normal conditions of
intended use during the anticipated life of the product or material.
--The provision relating to misrepresentation that a product has been
dyed with aniline dye and other specific misrepresentations has been
deleted.
--The ``fictitious animal'' provision has been deleted as unnecessary.
List of Subjects in 16 CFR Part 24
Advertising, Clothing, Distribution, Footwear, Imitation-leather
products, Labeling, Ladies' handbags, Leather and leather products
industry, Luggage and related products, Shoes, Trade practices, Waist
belts.
Accordingly, 16 CFR Part 24 is added to read as follows:
PART 24--GUIDES FOR SELECT LEATHER AND IMITATION LEATHER PRODUCTS
Sec.
24.0 Scope and purpose of guides.
24.1 Deception (general).
24.2 Deception as to composition.
24.3 Misuse of the terms ``waterproof,'' ``dustproof,''
``warpproof,'' ``scuffproof,'' ``scratchproof,'' ``scuff
resistant,'' or ``scratch resistant.''
Authority: 15 U.S.C. 45, 46.
Sec. 24.0 Scope and purpose of guides.
(a) The Guides in this part apply to the manufacture, sale,
distribution, marketing, or advertising of all kinds or types of
leather or simulated-leather trunks, suitcases, traveling bags, sample
cases, instrument cases, brief cases, ring binders, billfolds, wallets,
key cases, coin purses, card cases, French purses, dressing cases, stud
boxes, tie cases, jewel boxes, travel kits, gadget bags, camera bags,
ladies' handbags, shoulder bags, purses, pocketbooks, footwear, belts
(when not sold as part of a garment) and similar articles (hereinafter,
``industry products'').
(b) These Guides represent administrative interpretations of laws
administered by the Federal Trade Commission for the guidance of the
public in conducting its affairs in conformity with legal requirements.
These Guides specifically address the application of section 5 of the
FTC Act (15 U.S.C. 45) to the manufacture, sale, distribution,
marketing, and advertising of industry products listed in paragraph (a)
of this section. They provide the basis for voluntary compliance with
such laws by members of industry. Conduct inconsistent with the
positions articulated in these Guides may result in corrective action
by the Commission under section 5 if, after investigation, the
Commission has reason to believe that the behavior falls within the
scope of conduct declared unlawful by the statute.
Sec. 24.1 Deception (general).
It is unfair or deceptive to misrepresent, directly or by
implication, the kind, grade, quality, quantity, material content,
thickness, finish, serviceability, durability, price, origin, size,
weight, ease of cleaning, construction, manufacture, processing,
distribution, or any other material aspect of an industry product.
Sec. 24.2 Deception as to composition.
It is unfair or deceptive to misrepresent, directly or by
implication, the composition of any industry product or part thereof.
It is unfair or deceptive to use the unqualified term ``leather'' or
other unqualified terms suggestive of leather to describe industry
products unless the industry product so described is composed in all
substantial parts of leather.1 This section includes, but is not
limited to, the following:
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\1\ For purposes of these Guides, footwear is composed of three
parts: the upper, the lining and sock, and the outersole. These
three parts are defined as follows: (1) The upper is the outer face
of the structural element which is attached to the outersole; (2)
the lining and sock are the lining of the upper and the insole,
constituting the inside of the footwear article; and (3) the
outersole is the bottom part of the footwear article subjected to
abrasive wear and attached to the upper.
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(a) Imitation or simulated leather. If all or part of an industry
product is made of non-leather material that appears to be leather, the
fact that the material is not leather, or the general nature of the
material as something other than leather, should be disclosed. For
example: Not leather; Imitation leather; Simulated leather; Vinyl;
Vinyl coated fabric; or Plastic.
(b) Embossed or processed leather. The kind and type of leather
from which an industry product is made should be disclosed when all or
part of the product has been embossed, dyed, or otherwise processed so
as to simulate the appearance of a different kind or type of leather.
For example:
(1) An industry product made wholly of top grain cowhide that has
been processed so as to imitate pigskin may be represented as being
made of Top Grain Cowhide.
(2) Any additional representation concerning the simulated
appearance of an industry product composed of leather should be
immediately accompanied by a disclosure of the kind and type of leather
in the product. For example: Top Grain Cowhide With Simulated Pigskin
Grain.
(c) Backing material. (1) The backing of any material in an
industry product with another kind of material should be disclosed when
the backing is not apparent upon casual inspection of the product, or
when a representation is made which, absent such disclosure, would be
misleading as to the product's composition. For example: Top Grain
Cowhide Backed With Vinyl.
(2) The composition of the different backing material should be
disclosed if it is visible and consists of non-leather material with
the appearance of leather, or leather processed so as to simulate a
different kind of leather.
(d) Misuse of trade names, etc. A trade name, coined name,
trademark, or other word or term, or any depiction or device should not
be used if it misrepresents, directly or by implication, that an
industry product is made in whole or in part from animal skin or hide,
or that
[[Page 51584]]
material in an industry product is leather or other material. This
includes, among other practices, the use of a stamp, tag, label, card,
or other device in the shape of a tanned hide or skin or in the shape
of a silhouette of an animal, in connection with any industry product
that has the appearance of leather but that is not made wholly or in
substantial part from animal skin or hide.
(e) Misrepresentation that product is wholly of a particular
composition. A misrepresentation should not be made, directly or by
implication, that an industry product is made wholly of a particular
composition. A representation as to the composition of a particular
part of a product should clearly indicate the part to which the
representation applies.2 Where a product is made principally of
leather but has certain non-leather parts that appear to be leather,
the product may be described as made of leather so long as accompanied
by clear disclosure of the non-leather parts. For example:
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\2\ With regard to footwear, it is sufficient to disclose the
presence of non-leather materials in the upper, the lining and sock,
or the outersole, provided that the disclosure is made according to
predominance of materials. For example, if the majority of the upper
is composed of manmade material: Upper of manmade materials and
leather.
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(1) An industry product made of top grain cowhide except for frame
covering, gussets, and partitions that are made of plastic but have the
appearance of leather may be described as: Top Grain Cowhide With
Plastic Frame Covering, Gussets and Partitions; or Top Grain Cowhide
With Gussets, Frame Covering and Partitions Made of Non-Leather
Material.
(2) An industry product made throughout, except for hardware, of
vinyl backed with cowhide may be described as: Vinyl Backed With
Cowhide (See also disclosure provision concerning use of backing
material in paragraph (c) of this section).
(3) An industry product made of top grain cowhide except for
partitions and stay, which are made of plastic-coated fabric but have
the appearance of leather, may be described as: Top Grain Cowhide With
Partitions and Stay Made of Non-leather Material; or Top Grain Cowhide
With Partitions and Stay Made of Plastic-Coated Fabric.
(f) Ground, pulverized, shredded, reconstituted, or bonded leather.
A material in an industry product that contains ground, pulverized,
shredded, reconstituted, or bonded leather and thus is not wholly the
hide of an animal should not be represented, directly or by
implication, as being leather. This provision does not preclude an
accurate representation as to the ground, pulverized, shredded,
reconstituted, or bonded leather content of the material. However, if
the material appears to be leather, it should be accompanied by either:
(1) An adequate disclosure as described by paragraph (a) of this
section; or
(2) If the terms ``ground leather,'' ``pulverized leather,''
``shredded leather,'' ``reconstituted leather,'' or ``bonded leather''
are used, a disclosure of the percentage of leather fibers and the
percentage of non-leather substances contained in the material. For
example: An industry product made of a composition material consisting
of 60% shredded leather fibers may be described as: Bonded Leather
Containing 60% Leather Fibers and 40% Non-leather Substances.
(g) Form of disclosures under this section. All disclosures
described in this section should appear in the form of a stamping on
the product, or on a tag, label, or card attached to the product, and
should be affixed so as to remain on or attached to the product until
received by the consumer purchaser. All such disclosures should also
appear in all advertising of such products irrespective of the media
used whenever statements, representations, or depictions appear in such
advertising which, absent such disclosures, serve to create a false
impression that the products, or parts thereof, are of a certain kind
of composition. The disclosures affixed to products and made in
advertising should be of such conspicuousness and clarity as to be
noted by purchasers and prospective purchasers casually inspecting the
products or casually reading, or listening to, such advertising. A
disclosure necessitated by a particular representation should be in
close conjunction with the representation.
Sec. 24.3 Misuse of the terms ``waterproof,'' ``dustproof,''
``warpproof,'' ``scuffproof,'' ``scratchproof,'' ``scuff resistant,''
and ``scratch resistant.''
It is unfair or deceptive to:
(a) Use the term ``Waterproof'' to describe all or part of an
industry product unless the designated product or material prevents
water from contact with its contents under normal conditions of
intended use during the anticipated life of the product or material.
(b) Use the term ``Dustproof'' to describe an industry product
unless the product is so constructed that when it is closed dust cannot
enter it.
(c) Use the term ``Warpproof'' to describe all or part of an
industry product unless the designated product or part is such that it
cannot warp.
(d) Use the term ``Scuffproof,'' ``Scratchproof,'' or other terms
indicating that the product is not subject to wear in any other
respect, to describe an industry product unless the outside surface of
the product is immune to scratches or scuff marks, or is not subject to
wear as represented.
(e) Use the term ``Scuff Resistant,'' ``Scratch Resistant,'' or
other terms indicating that the product is resistant to wear in any
other respect, unless there is a basis for the representation and the
outside surface of the product is meaningfully and significantly
resistant to scuffing, scratches, or to wear as represented.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 96-25358 Filed 10-2-96; 8:45 am]
BILLING CODE 6750-01-P
