[Federal Register Volume 59, Number 239 (Wednesday, December 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30706]
[[Page Unknown]]
[Federal Register: December 14, 1994]
_______________________________________________________________________
Part VI
Federal Trade Commission
_______________________________________________________________________
16 CFR Part 18
_______________________________________________________________________
Guides for the Nursery Industry; Final Rule
FEDERAL TRADE COMMISSION
16 CFR Part 18
Guides for the Nursery Industry
AGENCY: Federal Trade Commission.
ACTION: Final amendment.
-----------------------------------------------------------------------
SUMMARY: The Federal Trade Commission (the ``Commission''), as part of
its periodic review of all its guides and rules, announces that it has
concluded a review of its Guides for the Nursery Industry (``Guides''
or ``Nursery Guides'') and has decided to retain them with certain
modifications. Specifically, the Commission has decided to amend Guide
6 and the definitions section of the Guides to advise sellers of plants
that it is an unfair or deceptive act or practice to offer for sale or
to sell plants collected from the wild state without disclosing that
fact, with the proviso that plants propagated from plants lawfully
collected from the wild state may be designated as ``nursery-
propagated.'' The Commission has also decided to amend Guides 1-8 to
update their legal terminology with terms that the Commission presently
uses.
EFFECTIVE DATE: February 13, 1995.
FOR FURTHER INFORMATION CONTACT: Terrence J. Boyle, Attorney, (202)
326-3016, Division of Enforcement, Bureau of Consumer Protection,
Federal Trade Commission, Washington, D.C. 20580.
SUPPLEMENTARY INFORMATION:
I. Background
The Nursery Guides were issued by the Commission in 1979.\1\ These
Guides address numerous sales practices for outdoor plants, trees and
flowers, including deceptive claims as to quantity, size, grade, kind,
species, age, maturity, condition, vigor, hardiness, growth ability,
price and origin or place where grown. On March 25, 1993, the
Commission published a Notice in the Federal Register soliciting
comment on the Guides.\2\ Specifically, the Commission solicited
comments on the costs and benefits of the Guides and their regulatory
and economic effect (see Part B below) and on a proposed amendment to
the Guides submitted by the Natural Resources Defense Council and
others (see Part A below). The comment period closed on May 26, 1993.
In response to the Notice the Commission received 37 comments. They are
discussed in Part II below.
---------------------------------------------------------------------------
\1\Industry guides are administrative interpretations of laws
administered by the Commission for the guidance of the public in
conducting its affairs in conformity with legal requirements. 16 CFR
1.5.
\2\58 FR 16139.
---------------------------------------------------------------------------
A. The Amendment Petition
On October 15, 1991, the Natural Resources Defense Council (NRDC)
requested for itself and ten other organizations\3\ that the Commission
amend Guide 6 and the definitions section of the Nursery Guides. The
petitioners asked the Commission to narrow significantly the one
exception to the Guides' requirement that plants collected from the
wild be identified as such. Guide 6 presently exempts from this wild-
origin disclosure requirement wild-collected plants that have been
grown in a nursery for a full growing season.\4\ Such plants could be
called ``Nursery-grown'' under the Guides because the Guides defined
the term ``nursery-grown stock'' to include both plants propagated and
cultivated in nurseries and wild-collected plants grown in nurseries
for a full growing season.\5\
---------------------------------------------------------------------------
\3\NRDC was joined in its petition by the following: California
Native Plant Society (CNPS); Environmental Defense Fund (EDF);
Garden Club of America (GCA); Mt. Cuba Center for the Study of
Piedmont Flora (MCCSPF); National Audubon Society (NAS); Native
Plant Society of Oregon (NPSO); Native Gardens (of Greenback,
Tennessee) (NGGT); New England Wild Flower Society, Inc. (NEWFS);
Niche Gardens Nursery of Chapel Hill, North Carolina (NGN); Traffic
U.S.A. (T-USA).
\4\Guide 6, 16 CFR 18.6, entitled ``Plants collected from the
wild state,'' reads as follows: ``It is an unfair trade practice to
sell, offer for sale, or distribute industry products collected from
the wild state without disclosing that they were collected from the
wild state: Provided, however, That if collected plants are grown in
the nursery row for at least one growing season before being
marketed, such disclosure is not required. [Guide 6]''
\5\Section 18.0 of the Guides, 16 CFR 18.0, entitled
``Definitions,'' includes the following definition: ```Nursery-grown
stock.' Plants propagated and grown under cultivation, or plants
transplanted from the wild and grown under cultivation for at least
one full growing season.''
---------------------------------------------------------------------------
The petitioners contended that Guide 6's exception to the wild-
origin disclosure requirement for wild-collected plants grown in
nurseries for a growing season and the Guides' definition of the term
``Nursery-grown stock'' can cause consumer confusion about the origins
of plants being offered for sale and contribute to the endangering of
several species of wild plants. The petitioners argued that many
consumers, for environmental reasons, do not want to purchase any
plants collected from the wild at any stage of their existence. Such
consumers are only willing to buy plants that have been propagated in
nurseries. Because the present Guides allow both nursery-propagated and
some wild-collected plants to be called ``Nursery Grown,'' consumers
are unable to tell whether a plant described as ``Nursery-Grown'' was
actually collected from the wild.
The petition requested that the:
Commission amend its Guides for The Nursery Industry to prohibit
use of the misleading term ``nursery grown'' and require that plants
labeled as ``propagated'' be grown from seeds, cuttings, callus tissue,
spores or other propagules (bulblets, bulbils, single cells, leaves)
under controlled conditions.
The original petition did not propose specific amendment language.
The petitioners expected discussions among interested parties would
first be necessary before specific amendment language could be
suggested. The essence of the petitioners' request, however, was to
have the Rule henceforth require plants collected from the wild but
then grown in a nursery for a full growing season to be identified as
wild collected. The Rule would no longer allow them to be called
``nursery grown.'' Only those plants propagated and grown in nurseries
would be exempt from the wild-collected disclosure requirement. The
petitioners also asked that the Guides make clear under what conditions
plants may be designated ``nursery propagated'' by proposing:
The term ``controlled conditions'' would include open beds on one's
property (including rented property) as long as the propagator is
engaging in efforts to promote propagation and growth of the plants,
e.g., weeding; fencing out deer, rabbits, or other wild animals;
watering; or providing fertilizer.
On May 21, 1992, the American Association of Nurserymen (AAN), the
nursery industry trade association, wrote to the Commission stating its
support for the petitioners' request and offered for consideration
specific amendment language.\6\ AAN urged that the Commission amend
Guide 6 to delete the exception to the wild origin disclosure
requirement for ``Nursery Grown'' stock. Further, AAN urged restricting
use of the term ``Nursery Propagated'' to just those plants actually
grown in nurseries from seeds or other propagules and specifying that
any plant propagated in a nursery from a plant lawfully collected from
the wild is to be considered ``nursery propagated.''
---------------------------------------------------------------------------
\6\This letter, along with the original petition, was placed on
the public record and described in the Federal Register Notice.
---------------------------------------------------------------------------
AAN explained that at the time the Guides were adopted the critical
issue with respect to plants' origins was to protect consumers from
inferior plant specimens. Plants freshly gathered from the wild often
die shortly afterwards due to their weakened condition following the
collection process. Guide 6 was written to prevent the omission of the
material fact of recent wild-collecting and thereby protect consumers
from inadvertently purchasing freshly collected wild plants. In recent
years, however, plant consumers have developed environmental concerns
that fifteen years ago were not known by the Commission. As a result,
AAN stated that over time the disclosure allowed by Guide 6 to permit
consumers to distinguish newly collected wild plants from nursery-
propagated plants or wild-collected plants that have been grown in a
nursery for a full growing season has become misleading. Some consumers
now object to buying any wild-collected plants, not because of the harm
that the collection processes may have caused the particular plants
being sold, but because of the harm the collection processes may be
causing the plant species in general and the environment.
AAN therefore proposed the following specific language to amend
Guide 6:
It is an unfair trade practice to sell, offer for sale, or
distribute industry products collected from the wild state without
disclosing that they were collected from the wild state; provided,
however, that plants propagated from plants lawfully collected from the
wild state are recognized and may be designated as nursery-propagated.
AAN argued that the above language would resolve the ambiguity in
the term ``nursery-grown'' that troubles petitioners (i.e., was the
plant collected from the wild state and grown in a nursery for a full
growing season or was the plant propagated in a nursery from a wild-
collected plant?). At the same time it avoids an ambiguity from arising
over the meaning of the term ``plants propagated'' by recognizing that
for all plants under consideration there had to have been an initial
propagative stock obtained from the wild. AAN argued that succeeding
generations of such plants should be distinguished from the initial
stocks and that the Guides should exempt from the wild-origin
disclosure requirement only the succeeding generations that have been
propagated and grown in nurseries. Only such plants should be allowed
to be sold as ``Nursery Propagated.''
The Federal Register Notice described the amendment proposals and
sought comment on sixteen questions asking about the extent of wild-
collecting, the degree consumers are concerned about knowing the
origins of the plants they purchase, the interpretation consumers give
to the term ``nursery-grown,'' the identities of plant species that are
now commonly wild-collected, the likelihood that continued wild-
collecting of these plants might endanger the chances of the species
surviving, and the costs and benefits associated with amending this
Guide.
B. Regulatory Review
As part of the Commission's ongoing project to review all its
guides and rules, the Federal Register Notice that sought comment on
the amendment proposal for the Guides also included questions about the
costs and benefits of the guides and their regulatory and economic
impact. The Notice also asked three general questions about the
environmental impact of the Nursery Guides, the relationship of those
Guides to statutes and treaties that cover the same subject matter, and
any changes since 1979 in consumer perceptions or preferences about
products covered by those Guides.
II. Comments Received
The Commission received comments from 36 individuals and
organizations. Of these, 23 were from individuals interested in
gardening. The others were from state or federal government officials,
gardening publications, members of the nursery industry, and a garden
club officer.7
---------------------------------------------------------------------------
\7\One person, Aimlee D. Laderman, submitted two comments. The
list of commentators below includes the document number for the
public record assigned each comment, the name of (and an
abbreviation for) the commentator, and (when included in the comment
or otherwise made known to the Commission) a general description of
the person or organization making the comment.
#001............................. William A. Niering, Professor of
Botony, Department of Botony,
Connecticut College,[WAN].
#002............................. Richard W. Lighty, Director, Mt Cuba
Center For The Study Of Piedmont
Flora [MCCSPF] One of the
petitioners.
#003............................. Richard L. Krueger, Environmental
Education Coordinator, Connecticut
Department of Environmental
Protection [RLK].
#004............................. Susan M. Smith [SMS].
#005............................. Joan L. Faust [JLF].
#006............................. Marilyn Magid, Chairman, Conservation
Committee, The Garden Club of
America [GCA]. One of the
petitioners.
#007............................. Ellen McMahon [EMcM].
#008............................. Clarisse S. Willemsen [CSW].
#009............................. Kelly Kearns, Native Plant Management
Specialist, Wisconsin Department of
Natural Resources [KK].
#010............................. Aimlee D. Laderman, Lecturer in
Wetland Ecology, School of Forestry
and Environmental Studies, Yale
University [ADL].
#011............................. Faith Thompson Campbell, Natural
Resources Defense Council [NRDC] One
of the petitioners.
#012............................. Mrs. Donald C. McClure [DCMcC].
#013............................. Zella E. Ellshoff [ZEE].
#014............................. Thomas Morley [TM].
#015............................. David Morgan, Editor, Nursery
Manager: The Nation's Magazine, for
Nurseries, Garden Centers &
Landscapers [DM].
#016............................. Sally D. Pettit [SP].
#017............................. Scott Weber, Co-Owner, Bluestem Farm:
Native Wildflowers & Grasses [SW].
#018............................. Teri Dunn, Associate Editor,
Horticulture: The Magazine of
American Gardening [TD].
#019............................. Craig J. Regelbrugge,, Director of
Regulatory Affairs and Grower
Services, American Association of
Nurserymen [AAN] Joined in the
petition.
#020............................. Patrick Smith [PS].
#021............................. Anne N. Clark [ANC].
#022............................. Marilyn Ortt [MO].
#023............................. Gloria C. Jones [GCJ].
#024............................. Rebecca Beattie [RB].
#025............................. Nina Peyton [NP].
#026............................. Calvert J. Armbrecht [CJA].
#027............................. Louise H. Hisdreth [LHH].
#028............................. Stuart Swift [SS].
#029............................. Sally L. White, Conservation
Committee, Colorado Native Plant
Society [SLW].
#030............................. Jennifer McAnlis [JMcA].
#031............................. Katharine P. Mackie [KPM].
#032............................. David S. Longland, Executive
Director, New England Wild Flower
Society [NEWFS]. One of the
petitioners.
#033............................. Charles Thomas, President, Mailorder
Association of Nurseries [CT].
#034............................. Gracie Harison [GH].
#035............................. Wayne L. Mitchell, Acting Chief,
Office of [CITES] Scientific
Authority, United States Department
of the Interior [WLM].
#036............................. Mary E. Morris [MEM].
#037............................. Aimlee D. Laderman, Lecturer in
Wetland Ecology, School of Forestry
and Environmental Studies, Yale
University [ADL].
The comments addressed only the proposal to amend Guide 6. No
comment responded to any of the regulatory review questions.8 Four
of the comments were letters from the petitioners supporting their
proposal.9 A fifth comment was a follow-up letter from the
American Association of Nurserymen.10
---------------------------------------------------------------------------
\8\For the text of the questions see the March 25, 1993, Federal
Register Notice.
\9\MCCSPF, #002, 1-2.; GCA, #006, 1; NRDC, #011, 1-9; NEWFS,
#032, 1-11.
\1\0AAN, #019, 1-4.
---------------------------------------------------------------------------
The comments from the petitioners and AAN stated that they had
reached agreement among themselves in requesting that the Commission
adopt the specifically worded amendment that AAN had proposed and that
the Commission amend the definitions section of the Guides by deleting
the present definition for ``Nursery-grown stock'' and adding instead
the following two new definitions:
`Nursery propagated stock' Plants propagated and grown under
cultivation, including plants propagated from plants, seeds, or
cuttings lawfully collected from the wild state.
`Propagation' Plants grown from seeds, cuttings, callous tissues or
other plant tissues, spores or other propagules under controlled
conditions. `Under controlled conditions' means in a non-natural
environment that is intensely manipulated by human intervention for the
purpose of producing selected species or hybrids.
Twenty-three comments simply urged the Commission to help protect
the environment and plant species now being wild-collected by amending
Guide 6 as petitioners have requested, but not answering any of the
specific questions of the Federal Register Notice.11 The 8
remaining commentators also urged the Commission to adopt the proposed
amendments, contending that many consumers are increasingly becoming
concerned with the effect that wild-collecting of plants is having on
the chances of survival of several popular species. In response to a
question in the Notice, four of these comments identified wild-
collected plants that are presently being sold in nurseries.12 For
example, Marilyn Ortt wrote that Cypripedium calceolus var. pubescens
is currently listed as ``Potentially Threatened'' by the State of Ohio,
but sells at retail for $7-9 in southern Ohio.13
---------------------------------------------------------------------------
\1\1WAN, #001, 1; RLK, #003, 1; SMS, #004, 1; JLF, #005, 1;
EMcM, #007, 1; CSW, #008, 1-2; ADL, #010, 1; WLM, #035, 1-36; DCMcC,
#012, 1-2; TM, #014, 1; SP, #016, 1; ANC, #021, 1; GCJ, #023, 1; RB,
#024, 1; NP, #025. 1; CJA, #026, 1; LHH, #027, 1; SS, #028, 1; SLW,
#029, 1; KPM, #031, 1; CT, #033, 1; GH, #034, 1-2; MEM, #036, 1;
ADL, #037, 1.
\1\2SW, #017, 1; PS, #020, 1-2; MO, #022, 1-2; JMcA, #030, 1.
\1\3MO, #022, 1.
---------------------------------------------------------------------------
The other four comments provided examples of the price differences
existing between wild-collected and nursery-propagated specimens of the
same plant species and offered explanations for such
differences.14 For example, when collected from the wild, orchids
typically cost less than $1, while orchids propagated from tissue
culture or seed and then grown to maturity in nurseries can cost $15 or
more.15 Such price differences exist primarily because of the
great difficulty so far experienced in getting certain popular wild
plants to propagate and grow in nurseries or because of the amount of
time and labor necessary to raise such plants to a point when they are
suitable for sale. One commentator cited the popular plant, Trillium,
which is rarely, if ever, nursery-propagated because it takes seven
years to grow before blossoming.16 None of the comments, however,
provided any data regarding what increased costs there might be for
retailers if the Guides no longer exempted from the wild-origin
disclosure requirement those wild-collected plants that had grown in
nurseries for a full growing season.
---------------------------------------------------------------------------
\1\4KK, #009, 1-3; ZEE, #013, 1-3; TD, #018, 1-5; WLM, #035, 1-
36.
\1\5KK, #009, 2. See also TD, #018, 2-3.
\1\6PS, #020, 1.
---------------------------------------------------------------------------
The United States Department of the Interior also submitted a
comment favoring the petitioners' proposal to amend the Guides to
narrow the exception to the wild-origin disclosure requirement. It
attached copies of pertinent sections of the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES), the Endangered Species Act of 1973 (ESA), as amended, and the
Lacey Act, all of which are concerned with protecting endangered
species of animals and plants. These show that revising the Guides to
use the word ``propagated'' rather than ``grown'' would be consistent
with the terminology of that treaty and those statutes.17 The
comment stated that the Commission's Guides ``are useful for plant
conservation.'' The kinds of plants covered by the Guides, and of
concern to the petitioners, are not (yet) endangered and therefore not
among those that specifically come under that treaty or those statutes.
The comment nonetheless stated that amending the Guides as requested
would be ``an important force to help keep the trade away from overuse
of wild specimens.''
---------------------------------------------------------------------------
\1\7WLM, #035, 1-2.
---------------------------------------------------------------------------
III. Conclusion
Although none of the comments specifically addressed the regulatory
review questions, no comment suggested that sellers have experienced
any difficulties in complying with the Guides.18 The Commission
infers that, because all the commentators urged the Commission to amend
the Guides as petitioners have requested, they all favor retaining the
Guides. The Commission therefore has concluded its regulatory review of
the Guides by deciding to retain them.
---------------------------------------------------------------------------
\1\8Although it did not respond to particular questions, the
United States Department of the Interior stated in its comment its
desire to ``encourage the Federal Trade Commission to continue 16
CFR part 18--Guides for the Nursery Industry.'' Ibid., 2.
---------------------------------------------------------------------------
All the comments urged that the Guides be amended as the
petitioners have requested.19 The Commission has determined to
revise the Guides because, as presently written, Guide 6 and the
definition of the term ``Nursery-grown stock'' do not allow consumers
to distinguish between plants that were propagated in nurseries and
those that were collected from the wild state and then grown in a
nursery for a full growing season. Under the present Guides, both kinds
of plants may be designated as ``nursery-grown,'' which may
inadvertently mislead consumers about the origin of the plants. When
the Guides were issued there may have been no deception involved in so
combining nursery-propagated and wild-gathered-but-nursery-cultivated
plants in a single category called ``nursery-grown stock.'' The
Commission now, however, knows there are substantial numbers of
consumers opposed to buying any wild-collected plants because they
believe that such collection processes are endangering the survival of
various plant species and damaging the environment. To them, a failure
to disclose that plants were originally collected from the wild would
be an omission of material fact. The industry itself (AAN) appears to
concur in this view. Accordingly, the Commission's original
interpretation of Section 5(a) of the FTC Act as it pertains to this
issue is being revised to reflect changes in what is material to
consumers when purchasing plants.
---------------------------------------------------------------------------
\1\9The Notice soliciting comments on the Guides (58 FR 16139,
March 25, 1993) quoted both the petitioners' general request that
Guide 6 be amended and the specific amendment proposals that AAN
requested and that the petitioners later supported.
---------------------------------------------------------------------------
The amendments proposed by AAN and the petitioners would permit
only those plants actually propagated in nurseries to be exempt from
the Guides' wild-origin disclosure requirement. Those sellers who have
lawfully collected plants from the wild will have to disclose this
fact, even if the plants have later been grown in a nursery for a full
growing season. Sellers will, however, be free to add to the wild-
origin disclosure a statement that the plant has been grown in a
nursery for a full growing season, if they wish. By defining what is
meant by ``propagated'' and ``propagation,'' the proposed amendments
also will clarify that it is only the plants being offered for sale,
not those from which they are descended, that are subject to the
Guides' disclosure requirement.
The Commission, however, has concluded that the words ``are
recognized and'' that the petitioners included in their proposed
amendment to Guide 6 are neither necessary nor helpful and therefore
has omitted them. The Commission also is using slightly revised wording
for the two proposed new definitions for the Guides so that: (1) Each
definition consists of just one sentence; (2) the two terms being
defined are for words actually used in the Guides rather than variants
of them (i.e., define ``nursery-propagated'' rather than ``nursery-
propagated stock'' and ``propagated'' rather than ``propagation''); and
(3) the definitions do not use a word that is itself part of the term
being defined (i.e., do not use the word ``propagated'' in the
definition of the term ``nursery-propagated'').
Lastly, the Commission is revising Sec. Sec. 18.1(a), 18.2(a)-(b),
18.3(a), 18.4(a)-(b), 18.5, 18.6, 18.7(a)-(b), and 18.8(a)-(b) of the
Guides. Specifically, the Commission is deleting from the Guides the
expressions ``it is an unfair trade practice'' and ``has the capacity
and tendency or effect of deceiving purchasers'' that the Commission no
longer uses in its orders, rules or guides. The Commission is bringing
these Guides up to date by substituting the language ``it is an unfair
or deceptive act or practice'' and ``misrepresents directly or by
implication.'' See the Commission's 1983 Statement on Deception found
in the appendix to Cliffdale Associates, 103 F.T.C. 110, 174 (1984).
List of Subjects in 16 CFR Part 18
Advertising, Nursery, Unfair or deceptive acts or practices.
Text of Amendments
For the reasons set forth in the preamble, 16 CFR Part 18 is
amended as follows:
PART 18--GUIDES FOR THE NURSERY INDUSTRY
1. The authority citation for part 18 is revised to read as
follows:
Authority: Secs. 5, 6 FTC Act; 38 Stat. 719, 721; 15 U.S.C. 45,
46.
2. Section 18.0 is amended by removing the paragraph Nursery-grown
stock. and by adding the following definitions:
Sec. 18.0 Definitions.
* * * * *
Nursery-propagated. Reproduced and grown under cultivation,
including reproduced and grown under cultivation from plants, seeds or
cuttings lawfully collected from the wild state.
Propagated. Reproduced from seeds, cuttings, callus or other plant
tissue, spores or other propagules under a controlled environment that
is intensely manipulated by human intervention for the purpose of
producing selected species or hybrids.
3. Section 18.1 is amended by revising paragraph (a) to read as
follows:
Sec. 18.1 Deception (general).
(a) It is an unfair or deceptive act or practice to sell, offer for
sale, or distribute industry products by any method or under any
circumstance or condition that misrepresents directly or by implication
to purchasers or prospective purchasers the products with respect to
quantity, size, grade, kind, species, age, maturity, condition, vigor,
hardiness, number of times transplanted, growth ability, growth
characteristics, rate of growth or time required before flowering or
fruiting, price, origin or place where grown, or any other material
aspect of the industry product.
* * * * *
4. Section 18.2 is amended by revising paragraphs (a) and (b)(1)
and (2) to read as follows:
Sec. 18.2 Deception through use of names.
(a) In the sale, offering for sale, or distribution of an industry
product, it is an unfair or deceptive act or practice for any industry
member to use a name for such product that misrepresents directly or by
implication to purchasers or prospective purchasers its true identity.
(b) Subject to the foregoing:
(1) When an industry product has a generally recognized and well-
established common name, it is proper to use such name as a designation
therefor, either alone or in conjunction with the correct botanical
name of the product.
(2) When an industry product has a generally recognized and well-
established common name, it is an unfair or deceptive act or practice
for an industry member to adopt and use a new name for the product
unless such new name is immediately accompanied by the generally
recognized and well-established common name, or by the correct
botanical name, or by a description of the nature and properties of the
product which is of sufficient detail to prevent confusion and
deception of purchasers or prospective purchasers as to the true
identity of the product.
* * * * *
5. Section 18.3 is amended by revising the introductory text and
paragraph (a) to read as follows:
Sec. 18.3 Substitution of products.
With respect to industry products offered for sale by an industry
member, it is an unfair or deceptive act or practice for any member of
the industry:
(a) To ship or deliver industry products which do not conform to
representations made prior to securing the order or to specifications
upon which the sale is consummated, without advising the purchaser of
the substitution and obtaining the purchaser's consent thereto prior to
making shipment or delivery, where failure to advise would be
misleading to purchasers; or
* * * * *
6. Section 18.4 is amended by revising paragraphs (a) and (b) to
read as follows:
Sec. 18.4 Size and grade designations.
(a) In the sale, offering for sale, or distribution of industry
products, it is an unfair or deceptive act or practice for an industry
member to use any term, designation, number, letter, mark, or symbol as
a size or grade designation for any industry product in a manner or
under any circumstance that misrepresents directly or by implication to
purchasers or prospective purchasers the actual size or grade of such
products.
(b) Under this section industry members offering lining-out stock
for sale shall specify conspicuously and accurately the size and age of
such stock when failure to do so may misrepresent directly or by
implication such stock to purchasers or prospective purchasers.
* * * * *
7. Section 18.5 is amended by revising the introductory text to
read as follows:
Sec. 18.5 Deception as to blooming, fruiting, or growing ability.
In the sale, offering for sale, or distribution of industry
products, it is an unfair or deceptive act or practice for any industry
member to misrepresent directly or by implication to purchasers or
prospective purchasers the ability of such products:
* * * * *
8. Section 18.6 is revised to read as follows:
Sec. 18.6 Plants collected from the wild state.
It is an unfair or deceptive act or practice to sell, offer for
sale, or distribute industry products collected from the wild state
without disclosing that they were collected from the wild state;
provided, however, that plants propagated in nurseries from plants
lawfully collected from the wild state may be designated as ``nursery-
propagated.'' [Guide 6]
9. Section 18.7 is revised to read as follows:
Sec. 18.7 Misrepresentation as to character of business.
(a) In the sale, offering for sale, or distribution of industry
products, it is an unfair or deceptive act or practice for any industry
member to represent itself directly or by implication to be a grower or
propagator of such products, or any portion thereof, or to have any
other experience or qualification either relating to the growing or
propagation of such products or enabling the industry member to be of
assistance to purchasers or prospective purchasers in the selection by
them of the kinds or types of products, or the placement thereof, when
such is not the fact, or in any other manner to misrepresent directly
or by implication the character, nature, or extent of the industry
member's business.
Note: Among practices subject to the inhibitions of this section
is a representation by an industry member to the effect that he is a
landscape architect when his training, experience, and knowledge do
not qualify him for such representation.
(b) It is also an unfair or deceptive act or practice for an
industry member to use the word ``guild,'' ``club,'' ``association,''
``council,'' ``society,'' ``foundation,'' or any other word of similar
import or meaning, as part of a trade name, or otherwise, in such a
manner or under such circumstances as to indicate or imply that its
business is other than a commercial enterprise operated for profit,
unless such be true in fact, or so as to deceive purchasers or
prospective purchasers in any other material respect. [Guide 7]
10. Section 18.8 is revised to read as follows:
Sec. 18.8 Deception as to origin or source of industry products.
(a) It is an unfair or deceptive act or practice to sell, offer for
sale, or advertise an industry product by misrepresenting directly or
by implication the origin or source of such product to purchasers or
prospective purchasers (e.g., by use of the term ``Holland'' to
describe bulbs grown in the U.S.A.); provided, however, that when a
plant has an accepted common name that incorporates a geographical term
and such term has lost its geographical significance as so used, the
mere use of such common names does not constitute a misrepresentation
as to source or origin (e.g., ``Colorado Blue Spruce,'' ``Arizona
Cypress,'' ``Black Hills Spruce,'' ``California Privet,'' ``Japanese
Barberry,'' etc.).
(b) It is also an unfair or deceptive act or practice to advertise,
sell, or offer for sale an industry product of foreign origin without
adequate and non-deceptive disclosure of the name of the foreign
country from which it came, where the failure to make such disclosure
would be misleading to purchasers or prospective purchasers. [Guide 8]
By direction of the Commission, Commissioner Varney not
participating.
Donald S. Clark,
Secretary.
[FR Doc. 94-30706 Filed 12-13-94; 8:45 am]
BILLING CODE 6750-01-P