[Federal Register Volume 69, Number 42 (Wednesday, March 3, 2004)]
[Rules and Regulations]
[Pages 9943-9946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4768]


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FEDERAL TRADE COMMISSION

16 CFR Part 304


Rules and Regulations Under the Hobby Protection Act

AGENCY: Federal Trade Commission.

ACTION: Confirmation of rule.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') has 
completed its regulatory review of the Rules and Regulations Issued 
Under the Hobby Protection Act (``rule''). The rule regulates the 
marking of imitation political and numismatic items. Pursuant to its 
regulatory review, the Commission concludes that the rule continues to 
be valuable both to consumers and businesses.

DATES: This action is effective as of March 3, 2004.

FOR FURTHER INFORMATION CONTACT: Janice Podoll Frankle, Attorney, 
Division of Enforcement, Bureau of Consumer Protection, Federal Trade 
Commission, Washington, DC 20580; (202) 326-3022.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The Commission has determined, as part of its oversight 
responsibilities, to review its rules and guides periodically to seek 
information about their costs and benefits and their regulatory and 
economic impact. The information obtained assists the Commission in 
identifying rules and guides that warrant modification or rescission.

II. Background

    On November 29, 1973, Congress passed the Hobby Protection Act 
(``Act''), 15 U.S.C. 2101-06. The Act requires manufacturers and 
importers of ``imitation political items'' \1\ to mark ``plainly and 
permanently'' such items with the ``calendar year'' such items were 
manufactured. Id. at 2101(a). The Act also requires manufacturers and 
importers of ``imitation numismatic items'' \2\ to mark ``plainly and 
permanently'' such items with the word ``copy.'' Id. at 2101(b). The 
Act further directs the Commission to promulgate regulations for 
determining the ``manner and form'' that imitation political items and 
imitation numismatic items are to be permanently marked with the 
calendar year of manufacture or the word ``copy.'' Id. at 2101(c) .
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    \1\ An imitation political item is ``an item which purports to 
be, but in fact is not, an original political item, or which is a 
reproduction, copy, or counterfeit of an original political item.'' 
15 U.S.C. 2106(2). The Act defines original political items as being 
any political button, poster, literature, sticker or any 
advertisement produced for use in any political cause. Id. at 
2106(1). The political items dealers sell include presidential, 
local election, and cause-type buttons, pins, posters, tie clasps, 
cuff links, mugs, photos, inauguration invitations, marshal's 
badges, medals, ribbons and the like.
    \2\ An imitation numismatic item is ``an item which purports to 
be, but in fact is not, an original numismatic item or which is a 
reproduction, copy, or counterfeit of an original numismatic item.'' 
15 U.S.C. 2106(4). The Act defines original numismatic items to 
include coins, tokens, paper money, and commemorative medals that 
have been part of a coinage or issue used in exchange or used to 
commemorate a person or event. Id. at 2106(3).
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    Pursuant to the Act, in 1975 the Commission issued rules and 
regulations under the Hobby Protection Act, 16 CFR part 304. The rule 
tracks the definitions of terms used in the Act and implements the 
Act's ``plain and permanent'' marking requirements by establishing the 
sizes and dimensions of the letters and numerals to be used, the 
location of the marking on the item, and how to mark incusable and 
nonincusable items.\3\ In 1988, the rule was amended to provide 
additional guidance on the minimum size of letters for the word 
``copy'' as a proportion of the diameter of coin reproductions.\4\ 53 
FR 38942 (October 4, 1988).
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    \3\ Incusable items are those that can be impressed with a 
stamp.
    \4\ Prior to the amendment, if a coin were too small to comply 
with the minimum letter size requirements, the manufacturer or 
importer individually had to request from the Commission a variance 
from those requirements. Because imitation miniature coins were 
becoming more common, the Commission determined that it was in the 
public interest to allow the placing of the word ``copy'' on 
miniature imitation coins in sizes that could be reduced 
proportionately with the size of the item.
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    On March 3, 2003, the Commission published a Federal Register 
notice (``FRN'') seeking comment on the rule as part of the 
Commission's ongoing project to review periodically its rules and 
guides to determine their current effectiveness and impact (68 FR 
9856). This FRN sought comment on the costs and benefits of the rule, 
what changes in the rule would increase its benefits to purchasers and 
how those changes would affect compliance costs, and whether 
technological or marketplace changes have affected the rule.
    The comments submitted in response to the FRN generally expressed 
continuing support for the rule, indicating that it has created a level 
playing field among competitors. The vast majority of comments proposed 
that the Commission expand the rule to address problems involving the 
selling (passing off) as originals of reproductions of antiques and 
collectibles not covered by the Act and rule.\5\ The Commission, 
however, does not have authority under the Act to amend the rule as 
requested. In addition, existing laws and informational material 
disseminated by various collecting clubs address many of the concerns 
raised by these comments.
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    \5\ Although the comments overwhelmingly supported expansion of 
the Act and rule, they did not specifically respond to all of the 
questions posed in the March 2003 FRN.
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III. Regulatory Review Comments

    The Commission received 350 comments in response to its FRN.\6\ 
Approximately 248 comments were letters and e-mails from individual 
collectors who advocated expanding the rule's coverage to all antiques 
and collectibles. The vast majority of these were form letters from 
individual collectors. Of the remainder, eight were from national trade 
associations and collector groups,\7\ three were from hobby 
publications,\8\ and the remaining were from dealers,\9\ State and 
local trade associations and local chapters of national groups,\10\ and 
antique appraisers.\11\
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    \6\ The comments are cited in this notice by the name of the 
commenter. All rule review comments are on the public record and are 
available for public inspection in the Consumer Response Center, 
Room 130, Federal Trade Commission, 6th and Pennsylvania Ave., NW., 
Washington, DC, from 9 a.m. to 5 p.m., Monday through Friday, except 
Federal holidays.
    \7\ National Association of Collectors and Association of 
Collecting Clubs (NAC); Wagner and Griswold Society; Custard Glass 
Collectors Society; Toy Train Collectors Association; Hamm's Club, 
Inc.; Casino Chips and Gaming Tokens Collectors Club; National 
Association of Milk Bottle Collectors; and National Insulator 
Association.
    \8\ Antique & Collectors Reproduction News; Coin World; and 
Kettle 'n Cookware.
    \9\ E.g., Americana Resources, Inc.
    \10\ Antique Dealers Association of Berks County, Inc.; The 
Questers; Michigan Hunting & Fishing License Collectors Club; 
American Political Items Collectors, National Capital Chapter; and 
Apple Valley Bottle Collectors.
    \11\ E.g., Donald Hoffman.
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    The Commission discusses the comments in two sections. In section 
A, the Commission analyzes the comments relating to political and 
numismatic products. (``covered products''). In section B, the 
Commission discusses the comments on expanding the Act and rule to 
cover all antiques and collectibles.

[[Page 9944]]

A. Comments Relating to Covered Products

1. Support for the Rule
    As previously discussed, the Act and rule's scope are limited to 
imitation political and numismatic items. The comments uniformly stated 
that there is a continuing need for the rule and that it has been 
successful in protecting consumers from the passing off of 
reproductions of the covered items.\12\ In explaining the continuing 
need for the Act and rule, one commenter stated that the coin 
collecting hobby is currently experiencing a renaissance, due in large 
part to the 50 state quarters program that the U.S. Mint launched in 
1999.\13\ A dealer in political memorabilia on the Internet stated that 
most collectors of political items feel comfortable for one reason--the 
Hobby Protection Act.\14\
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    \12\ E.g., NAC; American Political Items Collectors (APIC). 
Larry Klug, APIC executive director, write, ``I can say, without 
pause, that the Hobby Protection Act has made a major difference in 
this collecting area over the past nearly 30 years--not only by 
identifying those items which are reproduced by having the date and 
word `copy' on them, but also in stifling the actual reproduction of 
items in the first place.''
    \13\ According to Coin World, the U.S. Mint has reported that 
more than 139 million U.S. adults are collecting coins today, as 
compared with approximately 2 million just prior to 1999.
    \14\ Larry Krug, Americana Resources, Inc.
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2. Proposed Amendments Regarding Covered Products
a. Require Replicas To Be Marked ``Copy'' Regardless of the Metal 
Content
    One commenter stated that some manufacturers ``skirt'' the rule by 
adding a hallmark or varying the metal so as to claim that the item is 
not an ``exact'' replica.\15\ The commenter asserted that the consuming 
public may not be able to discern the immediate difference in metal 
content in a coin that is in every other respect an exact duplicate of 
the rare coin. According to the commenter, this problem is exacerbated 
when the coin is sold in the secondary market, where it is often 
perceived and sold as a genuine coin. The commenter suggested requiring 
any replica that duplicates the genuine design elements, legends and 
denomination markings to be marked ``copy'' regardless of the replica's 
metal content.\16\
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    \15\ Coin World.
    \16\ Id.
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    The Commission believes the Act's and rule's definitions of 
``imitation numismatic item'' cover an imitation coin that contains a 
different metal content from the original item where the imitation item 
``purports to be, but in fact is not, an original.'' 15 U.S.C. 2106(4); 
16 CFR 304.1(d) (emphasis added). Accordingly, such imitation coins 
should be marked ``copy'' and this notice should alert those who are 
not so marking their coins in the mistaken belief that the Act and rule 
do not apply of their compliance obligation. Moreover, even though the 
Act and rule address only the marking, and not the marketing, of 
imitation numismatic or political items, misrepresenting a copy as an 
original in advertising or marketing constitutes a ``deceptive act or 
practice'' under section 5 of the FTC Act, 15 U.S.C. 45.\17\
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    \17\ See FTC v. Hang-Ups Art Enters., 1997-1 Trade Cas. (CCH) ] 
71,709 (C.D. Cal. January 30, 1996) (FTC alleged that defendants 
violated FTC Act section 5 by falsely representing that the art 
prints were the work of the named artists or that they were 
authorized by the artist; order prohibits defendants, in connection 
with marketing any artworks, from falsely representing that any 
artwork displaying an original signature or edition size designation 
is the work of a particular artist); FTC v. Magui Publishers, Inc., 
1991-1 Trade Cas. (CCH) ] 69,425 (C.D. Cal. March 28, 1991) (FTC 
alleged that defendants violated FTC Act section 5 by 
misrepresenting that Salvador Dali had a role in the creation and 
production of the artwork, when, in fact, Dali was physically 
incapable of participating in the production of print editions of 
his work).
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b. Require the Word ``Copy'' To Be Incused on Both Sides of Replicas of 
U.S. Coins
    The rule currently requires that the word ``copy'' be marked on 
either side of the coin, 16 CFR 304.6(b)(2). Coin World suggested that 
the word ``copy'' be incused on both sides of the coin because 
unscrupulous sellers may take advantage of the fact that manufacturers 
may have inconspicuously woven the word ``copy'' into the original 
design elements of one side of the coin. This may be a particular 
problem for coins minted prior to 1836.\18\ The Commission has 
concluded that a requirement that ``copy'' be marked on both sides of 
an imitation coin is not warranted. With exhibited coins, the potential 
buyer would normally have the chance to fully view and handle the coin, 
so the ``copy'' marking would be seen prior to purchase. Furthermore, 
as discussed above, if the seller misrepresents a copy as an original 
in advertising or marketing, such practice would be deceptive in 
violation of section 5 of the FTC Act, 15 U.S.C. 45.
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    \18\ Coin World. According to Coin World, they have seen the 
most abuses in copies of large cents coins minted prior to 1836.
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B. Comments Relating to Expanding Coverage of the Act and Rule to 
Reproductions of All Antiques and Collectibles

    The vast majority of the 350 comments submitted in response to the 
Commission's FRN advocated that the Act or rule be expanded to cover 
antiques and collectibles. In summary, these comments state that 
reproductions of many types of antiques and collectibles are being 
passed off as originals, causing harm to collectors and dealers. Many 
comments also assert that because of improvements in technology, even 
knowledgeable persons have difficulty distinguishing reproductions from 
the originals.
    Collectors of a wide variety of items proposed expanding the rule. 
Such commenters included collectors of the following items: Victorian 
paper weights,\19\ casino chips and gambling tokens,\20\ custard 
glass,\21\ American Pattern Glass,\22\ thimbles,\23\ antique fishing 
lures,\24\ glass and porcelain electrical insulation devices related to 
the communications and power industries,\25\ milk bottles and other 
dairy memorabilia,\26\ antique fruit jars,\27\ toy trains and related 
material,\28\ and 19th Century homemade dolls.
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    \19\ William C. Price.
    \20\ E.g., Alex Cilento. Several commenters stated that they 
believed that the Act and rule should be amended to specifically 
include casino chips and tokens in the definition of imitation 
numismatic items. The commenters stated that such a modification 
would deter those who might consider counterfeiting casino chips and 
tokens.
    \21\ E.g., Sarah I. Coulon.
    \22\ E.g., Patricia Riemann.
    \23\ Kathy John.
    \24\ Franklin T. Lanham.
    \25\ E.g., Tom Katonak, National Insulator Association.
    \26\ E.g., James D. Weidenhammer.
    \27\ Tom and Denna Caniff.
    \28\ Ronald S. Morris, Train Collectors Association.
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1. The Source and Scope of the Passing Off Problem
    The comments suggested that many categories of collectibles are 
subject to being passed off, and provided explanations for the problem. 
One commenter stated that since the passage of the Act in 1973 there 
has been a dramatic increase of reproductions in all areas of the 
antiques and collectibles market. Dealers and collectors alike have 
been fooled by reproductions they have purchased, believing them to be 
genuine antiques. The commenter stated that this deception translates 
into financial losses and builds a sense of mistrust in the antiques 
market.\29\ Numerous commenters stated that because of improvements in 
manufacturing technology, the quality of reproductions has vastly 
improved to the point where reproductions are virtually 
indistinguishable from the originals.\30\ One commenter pointed out

[[Page 9945]]

that some items are even being made from the original molds.\31\
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    \29\ Joy Harrington.
    \30\ E.g., Bob and Janice Baltzell d/b/a Classic Treasure; 
Douglas N. Smith; and Sarah Campbell Drury, Candidate Member, 
American Society of Appraisers. These commenters asserted that while 
they consider themselves ``experts'' in certain categories of 
antiques and collectibles, it is impossible to keep up with the 
latest reproductions. They stated that some reproductions are well 
made and appear to be almost exact duplicates of original items.
    \31\ Bob and Janice Baltzell d/b/a Classic Treasure.
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    Another commenter stated that since the 1998 review of the Act, 
there has been a tremendous increase in the number of reproductions, 
imported mainly from the Far East, with forged, fake, or misleading 
backstamps or other markings and only a paper label indicating the 
country of origin. The commenter pointed out that the paper labels are 
routinely removed and the items are then sold in flea markets, antique 
malls and on the Internet, and are represented as antiques.\32\ 
Similarly, another commenter stated that American import companies 
contract with foreign factories, most often in China, to make 
reproductions of vintage American art pottery and art glass with 
replicas of the original American company marks. The commenter stated 
that the only indication that the product is a reproduction and/or of 
foreign origin is a tiny paper sticker that states, ``Made in China.'' 
The commenter pointed out that the stickers virtually never make it to 
the retail market.\33\
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    \32\ Mary Bitting Page, Granny's Attic.
    \33\ Marcus Page.
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    Several commenters stated that Internet trading makes it impossible 
to examine an item before purchasing it.\34\ One dealer, who has been 
selling on the Internet for nearly eight years, stated that he is 
finding an increasing number of customers who are fearful of purchasing 
reproductions, particularly those who previously have had bad 
experiences with their Internet purchases.\35\ Several commenters 
stated that Internet sales spread the ``fakes'' quickly, before dealers 
and the public can be warned in trade publications.\36\ Another 
commenter reported that the Internet has increased the number of 
collectors; thus, there has been an increase in buyers who are less 
informed about reproductions.\37\
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    \34\ E.g., Michael B. Young.
    \35\ Larry Krug, Americana Resources, Inc.
    \36\ Antique Dealers Association of Berks County, Inc.
    \37\ NAC.
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    Although the comments do not present information sufficient to 
quantify or determine the amount of economic and other harm caused, 
they suggest several possible adverse effects of the passing off 
problem. For example, the comments suggest that individual buyers may 
pay considerably more than a product is worth, that owners of original 
antiques or collectibles that are heavily reproduced may lose the value 
of their investment, and that the uncertainty regarding the genuineness 
of antiques and collectibles may dissuade persons from purchasing 
originals or from becoming collectors, which also adversely affects 
businesses that deal in originals.
2. Proposals To Expand Coverage of the Rule to Non-Covered Products
    Most commenters recommended that the Commission require that 
antique reproductions be clearly and permanently marked ``copy.'' \38\ 
One commenter stated that permanently marking items as ``copy'' would 
eliminate the problem of confusion between the actual antique and the 
reproduction. That commenter stated that adding ``copy'' to the product 
would require only a small adjustment during the manufacturing 
process.\39\ Another commenter argued that the only reason not to 
permanently mark items as reproductions is if the intent is to co-
mingle them with the antiques in order to ``fool the public.'' \40\
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    \38\ E.g., Samuel Clark.
    \39\ Id.
    \40\ Luan B. Watkins.
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    The commenters varied in their approaches to the types of 
additional information that they proposed be disclosed on the items, 
including requiring manufacturers to mark new items with: the date of 
manufacture; \41\ the manufacturer's name; \42\ and/or the place of 
manufacture.\43\ One commenter's solution to temporary paper country-
of-origin labels was to embed the country-of-origin and the date 
permanently into the underside of the product.\44\ One dealer suggested 
that manufacturers who reissue old patterns in exact form and color 
should be required to use a permanent mark that would identify the date 
of manufacture.\45\
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    \41\ E.g., Mary Biting Page; Wagner and Griswold Society; Penny 
Reed.
    \42\ E.g., LeAnne Milliser; Virginia H. Cori.
    \43\ E.g., Vivian Riegelman.
    \44\ Richard Dudley. The commenter stated that this can be done 
by simply modifying the mold with an inset.
    \45\ LeAnne Milliser, Golden Age Treasures.
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    For several reasons, the Commission does not propose to adopt the 
changes requested by the commenters. First, the Act does not provide 
the Commission with the legal authority to expand the rule's coverage 
to all antiques and collectibles. The plain language of the Act 
encompasses only numismatic and political items and directs the 
Commission to promulgate rules regarding the marking of these covered 
products only. 15 U.S.C. 2101. For this reason, the Commission cannot 
amend the rule to include products not specified in the Act.
    Second, the Commission believes that existing Federal and State 
laws provide remedies for some issues the comments raise. For example, 
the majority of comments cited imported reproductions as the most 
significant source of passed off goods. Current U.S. laws and 
regulations already require country-of-origin markings for goods 
imported into the United States. Specifically, country-of-origin 
marking for imports falls under the jurisdiction of the U.S. Bureau of 
Customs and Border Protection (``CBP''), U.S. Department of Homeland 
Security, which enforces the Tariff Act of 1930. 19 U.S.C. 1304. U.S. 
customs laws require each imported article produced abroad to be marked 
legibly, indelibly, and permanently in a conspicuous place to indicate 
the country of origin. The Tariff Act also allows the container of an 
imported good to bear the origin marking rather than the good itself, 
as long as the good reaches the ultimate purchaser in the container. 
Under the Tariff Act, a permanent marking is a marking that will remain 
on the article or container until it reaches the ultimate purchaser, 
although the marking may be removed by the ultimate purchaser and need 
not be of a permanence to remain affixed once in his or her 
possession.\46\ This marking may not be removed prior to delivery to 
the ultimate purchaser, however, and anyone who removes this marking 
prior to such delivery could be subject to prosecution and criminal 
penalties.
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    \46\ But see 19 CFR 1343(c)(2), which requires that imported 
Native American-style jewelry be indelibly marked with the country 
of origin by cutting, die-sinking, engraving, stamping, or some 
other permanent method.
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    The Commission staff has brought the foreign origin marking 
concerns raised in this proceeding to the CBP's attention because its 
regulations govern several of the problems discussed in the comments. 
For example, numerous commenters stated that certain country-of-origin 
labels are being deliberately removed before reaching the ``ultimate 
purchaser.'' The CBP urges persons with information regarding the 
violative removal of required country-of-origin markings to write to: 
Commercial Enforcement Branch, Office of Field Operations, U.S. Bureau 
of Customs and Border Protection, 1300 Pennsylvania Ave., NW., 
Washington, DC 20229, or to call CBP's toll free Commercial Fraud 
Hotline, 1-800-BE-ALERT. The CBP staff suggest consumers provide them 
with as much of the following

[[Page 9946]]

information as possible: The port to which the questionable merchandise 
was shipped; the importers' names and/or the repurchasers' names; the 
kind of merchandise at issue; and any information regarding the alleged 
deliberate removal of the paper country-of-origin label.
    Further, intentionally passing off reproductions as antiques can be 
prosecuted as criminal fraud or as civil fraud in a lawsuit by a 
buyer.\47\ Additionally, the Lanham Act provides injured persons with a 
private right of action against certain false or misleading 
representations regarding goods or false designation of origin, e.g., 
reproductions being passed off as original items. 15 U.S.C. 1125. 
Further, a pattern or practice of significant affirmative 
misrepresentations or failure to disclose material information relating 
to reproductions passed off as originals may violate the FTC Act.\48\
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    \47\ Section 2-721 of the Uniform Commercial Code provides civil 
remedies for material misrepresentation and fraud in sales 
transactions.
    \48\ Section 5 of the FTC Act prohibits deceptive acts or 
practices in commerce. 15 U.S.C. 45. A deceptive act or practice is 
one that is likely to mislead consumers acting reasonably under the 
circumstances. As a matter of policy, however, the Commission does 
not generally intervene in individual disputes. For the most part, 
the instances of passing off described in the comments reflect 
specific individual transactions, rather than a patter or practice 
of passing off. Where the Commission obtains evidence of such a 
pattern or practice, however, it may take action.
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    In addition to the deliberate removal of country-of-origin labels, 
many commenters suggested that the lack of truly permanent country-of-
origin labels on reproductions can result in these reproductions 
inadvertently being passed off as originals in the secondary market. 
This could be addressed, at least in part, through greater enforcement 
of labeling requirements to the initial seller and through educational 
remedies.
    The record indicates that there are many non-legal resources 
available to educate consumers about antiques and collectibles and thus 
reduce consumers' susceptibility to the practice of passing off. For 
example, several newsletters and hobby newspapers regularly warn and 
advise buyers of antiques and collectibles about reproductions of 
specific items and classes of items.\49\ The comments also indicate 
that there are collector clubs for many categories of collectibles that 
provide members with similar information.\50\ The Commission staff will 
continue to explore whether there is a role for the Commission in these 
efforts to increase consumer awareness.
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    \49\ E.g., Antiques & Collectors Reproduction News, published by 
Mr. Mark Chervenka of Desmoines, Iowa.
    \50\ E.g., NAC. This commenter noted that many collecting clubs 
have educational programs, such as newsletters, Web sites, seminars 
or workshops at club conventions, about reproductions.
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IV. Conclusion

    The comments uniformly favor retention of the rule and state that 
there is a continuing need for the rule with regard to currently 
covered products, i.e., imitation numismatic and political items; that 
the rule benefits consumers and the industry; that the rule does not 
impose substantial economic burdens; and that the benefits of the rule 
outweigh the minimal costs it imposes.
    Although many comments recommended that the rule be expanded to 
cover all antiques and collectibles, the Commission does not have the 
authority under the Act to expand the rule in this manner. Furthermore, 
there are a variety of legal and non-legal resources that address many 
of the issues raised by the commenters favoring expansion of the rule's 
coverage. Accordingly, the Commission has determined to retain the 
current Rule and is terminating this review.

List of Subjects in 16 CFR Part 304

    Hobbies, Labeling, Trade practices.

    Authority: The Federal Trade Commission Act, 15 U.S.C. 41-58.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 04-4768 Filed 3-2-04; 8:45 am]
BILLING CODE 6750-01-P