[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.

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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.
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    \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.
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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\
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    \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.''
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    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.''
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    \6\This letter, along with the original petition, was placed on 
the public record and described in the Federal Register Notice.
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    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
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    \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
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    \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.
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    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
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    \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.
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    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.
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    \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.
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    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.''
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    \1\7WLM, #035, 1-2.
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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.
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    \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.
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    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.
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    \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.
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    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