• The Picture Tube Rule requires manufacturers to base screen size measurements on the horizontal measure of the viewable area, unless the alternative method of measurement is clearly disclosed. This rule was originally intended to help consumers compare products, but with the changes in television technology. In determining whether the rule is still needed, relevant concerns include changes in television technology such as the incorporation of plasma, LED, OLED, and other similar materials in flat display screens. The full list of questions the FTC hopes to address can be found on the Notice of Public Rulemaking here. Comments are due August 31.
• The FTC is also seeking comment on a proposal to eliminate the “housemark” provisions of the Textile Rules. The housemark provisions require marketers who want to use a “housemark” (a distinctive mark used to identify all a firm’s products) on a textile’s tag in lieu of their business name only if they first register their housemark with the Commission. It is the agency’s position that that provision, imposed in 1959, is no longer necessary because trademark owners can easily be identified by searching online or via the U.S. Patent and Trademark Office website. Therefore, the FTC believes that removing these requirements will reduce compliance costs and increase firms’ flexibility. Comments are due by July 31.
• The FTC is seeking public comment on its CAN-SPAM Rule, which requires a commercial email to contain accurate header and subject lines, identify itself as an ad, include a valid physical address, and offer recipients a way to opt out of future messages. The FTC is seeking comment on whether consumers have benefitted from the Rule, whether it should be modified, the costs of compliance, whether it should be amended to account for technological or economic changes, among other things. Comments are due by August 31.
• The Energy Labeling Rule is also being edited to eliminate burdens on the industry and account for new products. The Energy Labeling Rule requires yellow EnergyGuide labels on certain appliances to help consumers compare similar models using estimated operating cost and energy consumption ratings. The comments period for this change has ended. The FTC sought public comment on these changes in September 2016. The accepted changes eliminate obsolete marking requirements for plumbing products, exempt certain ceiling fans from labeling requirements, and update the labels to cover electric instantaneous water heaters.

Overall, this announcement is consistent with the FTC’s recent systematic review of rules and guides. We will continue to track the comments and provide updates on any important developments.

The Commission adopted the following changes:

• Allow certain hang-tags disclosing fiber trademarks and performance, even if the hang-tags do not disclose the product’s full fiber content;

• Clarify that a product’s country of origin is the country where the product was processed or manufactured, as determined by U.S. Customs and Border Protection;

• Amend the provisions relating to documents, such as invoices and guaranties, to better address e-commerce;

• Replace the requirement that guarantors sign continuing guaranties under penalty of perjury with a requirement that they certify that they will actively monitor and ensure compliance with the applicable Act and Rules;

• Incorporate the new definitions for cashmere and very fine wools, which now require that fibers from the cashmere goat that do not meet the new definition of cashmere be labeled as wool (rather than cashmere); and

• Clarify that products described as containing virgin or new wool must contain wholly new or virgin fiber.

The amendments take effect 30 days after publication in the Federal Register.

The Commission adopted the following changes:

• Allow more flexibility regarding label size, text, and use for items sold in pairs or groups, specifically, by

- eliminating the label size requirement to require, consistent with the Textile Labeling Rules, that labels be “conspicuous and of such durability as to remain attached through distribution, sale or resale, and until sold and delivered to the ultimate consumer”;

- replacing the 12-point or “pica” type font size requirement with a requirement to disclose information “in such a manner as to be clearly legible, conspicuous, and readily accessible to the prospective purchaser”;

- removing limits on information appearing on the front of the label; eliminating the requirement that mandated disclosures appear in a specific order; and

- allowing, consistent with the Textile Labeling Rules, a single label for items sold in pairs or groups, regardless of whether they are attached to each other at the point of sale.

• Eliminate the “de minimis” exemption and replace it with a hunter/trapper exemption, as required by the Truth in Fur Labeling Act;

• Amend the guaranty provisions, harmonizing them with those in the Textile Labeling Rules, to better address e-commerce; and

• Remove the requirement that the label disclose that fur consists of “sides” or “flanks.”

Additionally, the Commission decided, in response to unanimous commenter opposition, not to require annual renewal of continuing guaranties, but noted its continued concern that such guaranties’ reliability may degrade over time.

The amendments take effect November 19, 2014. Our blog post on the recent amendments to the Textile Labeling Rules is available here.

The Commission adopted the following changes from the proposed rule:

• incorporate the updated International Organization for Standardization standard - ISO 2076:2010(E), ‘‘Textiles—Man-made fibres—Generic names’’ establishing generic fiber names for manufactured fibers;
• allow certain hang-tags disclosing fiber names and trademarks, and performance information, without the need to disclose the product’s full fiber content;
• clarify that an imported product’s country of origin is the country where it was processed or manufactured, as determined under laws and regulations enforced by U.S. Customs and Border Protection;
• better address electronic commerce, including recognition of the validity of electronic documents and signatures via E-SIGN, with revised definitions of “invoice” and “invoice or other paper,”
• replace the requirement that guarantors sign continuing guarantees under penalty of perjury with a requirement that they acknowledge that providing a false guaranty is unlawful, and certify that they will actively monitor and ensure compliance with the applicable law; and
• clarify the provision identifying textile fiber product categories and products that are exempt from the Act’s requirements.

The Commission proposed requiring the continuing guaranty to be filed each year, a suggestion that drew significant objection from stakeholders because of the burdens and costs of obtaining and filing guarantees each year. The Commission stated that it could not conclude that annual filing would enhance the guarantees’ reliability nor could it confirm that the costs of annual filing would outweigh the burdens. As such, this proposal was not adopted. This point in particular is a positive outcome for retailers, which follows the Commission’s January 2013 enforcement policy statement clarifying the Commission’s position on retailers relying on foreign vendor-issued guarantees.

The amended rules will become effective 30 days after publication in the Federal Register.

The roundtable will focus on a proposal to allow manufacturers and importers to include professional instructions for wetcleaning – described as an environmentally friendly alternative to drycleaning – on labels if the garment can be professionally wetcleaned and on whether the Commission should require a wetcleaning instruction for such garments. It will also address the cost of substantiating wetcleaning instructions, the availability of wetcleaning, consumer awareness of wetcleaning, and the content of labels providing a wetcleaning instruction.

The roundtable will also feature a discussion about the differences between ASTM International (American Society for Testing and Materials) and both the 2005 and 2012 ISO (International Organization for Standardization) care symbols, whether labels should identify ISO symbols as such if used to comply with the Rule, the change in the meaning of the circle P symbol in the ASTM system, and consumer understanding of symbols. In addition, the roundtable will include a discussion about the absence of ASTM and ISO symbols for solvents other than perchloroethylene and petroleum. The roundtable also will address how to clarify what constitutes a reasonable basis for care instructions.

The Commission has obtained civil penalties in several cases involving the Care Labeling Rule, and dry cleaning instructions in particular, over the last several years. Comments submitted in response to the Commission’s September 2012 request can be found here.

The enforcement policy statement attempts to address this gap between the law and modern retailing reality by creating a defense for retailers who rely on vendor representations regarding product content, but are unable to obtain a valid guaranty because the vendor is overseas. In such cases, the Commission will not initiate enforcement where the retailer relied on the overseas vendor in good faith and did not embellish or misrepresent the vendor’s claims. Where the retailer is the manufacturer, however, as is the case with private label production, the Commission will still hold the retailer accountable to ensure that the items are properly labeled and advertised.

This change in enforcement policy is important for manufacturers and retailers. Manufacturers should be sure that their textile, wool, and fur products are properly labeled because retailers may increase their reliance on these statements. Retailers should examine their guaranty practices as well as their copy creation processes to determine whether advertising copy matches vendor-provided information to be prepared to take advantage of the “vendor defense” if needed in the future.

This post was written by Christie Grymes Thompson.