Industry guides: Feather and down products,

FR, August 20, 1998 › Rules › Federal Trade Commission

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Federal Register: August 20, 1998 (Volume 63, Number 161)Rules and RegulationsPage 44553-44555From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr20au98-8

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.

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.

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.

\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.

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.

\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.''

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

\4\ 16 CFR 303.43 and 303.27, promulgated under the Textile Fiber Products Identification Act, 15 U.S.C. 70-70k.

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

\5\ Cliffdale Associates, Inc., et al., 103 F.T.C. 110, 175 (including Deception Statement as Appendix) (1984).

\6\ Id. at 176.

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. 98-22445Filed8-19-98; 8:45 amBILLING CODE 6750-01-P