[Federal Register Volume 79, Number 53 (Wednesday, March 19, 2014)]
[Proposed Rules]
[Pages 15272-15275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-06066]


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FEDERAL TRADE COMMISSION

16 CFR Parts 500, 501, 502, and 503


Rules, Regulations, Statements of General Policy or 
Interpretation and Exemptions Under the Fair Packaging and Labeling Act

AGENCY: Federal Trade Commission (``FTC'' or ``Commission'').

ACTION: Advance notice of proposed rulemaking; request for public 
comment.

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SUMMARY: The Commission systematically reviews its rules and guides to 
ensure they continue to achieve their intended purpose without unduly 
burdening commerce. As part of this systematic review, the Commission 
requests public comment on the overall costs, benefits, necessity, and 
regulatory and economic impact of the FTC's Rules, Regulations, 
Statements of General Policy or Interpretation and Exemptions under the 
Fair Packaging and Labeling Act (``FPLA'' or ``Act'').

DATES: Comments must be submitted by May 21, 2014.

ADDRESSES: Interested parties may file a comment online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``FPLA Rules, 16 CFR 
Parts 500-503, Project No. R411015'' on your comment, and file your 
comment online at https://ftcpublic.commentworks.com/ftc/fairlabelingact by following the instructions on the web-based form. If 
you prefer to file your comment on paper, mail or deliver your comment 
to

[[Page 15273]]

the following address: Federal Trade Commission, Office of the 
Secretary, Room H-113 (Annex G), 600 Pennsylvania Avenue NW., 
Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: Megan E. Gray, Attorney, (202) 326-
3408, Division of Enforcement, Bureau of Consumer Protection, Federal 
Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Fair Packaging and Labeling Act, 15 U.S.C. 1451 et seq., 
enacted in 1966, is designed to facilitate value comparisons and 
prevent unfair or deceptive packaging and labeling of many ``consumer 
commodities.'' Those consumer commodities are any food, device, or 
cosmetic,\1\ and any other article, product, or commodity of any kind 
or class which is customarily produced or distributed for sale through 
retail sales agencies or instrumentalities for consumption by 
individuals, or use by individuals for purposes of personal care or in 
the performance of services ordinarily rendered within the household, 
and which usually is consumed or expended in the course of such 
consumption or use.\2\
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    \1\ The Food and Drug Administration administers the FPLA with 
respect to foods, drugs, cosmetics, and medical devices. 15 U.S.C. 
1454(a); 15 U.S.C. 1456(a).
    \2\ 15 U.S.C. 1459.
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    Several categories of products are exempt from FTC regulations 
under FPLA. The Act specifically excludes: (a) Meat products; (b) 
poultry; (c) tobacco products; (d) any commodity subject to packaging 
or labeling requirements imposed by the Secretary of Agriculture 
pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act, or 
certain provisions of the Virus-Serum-Toxin Act; (e) drugs under the 
jurisdiction of the Food and Drug Administration; (f) alcoholic 
beverages; and (g) commodities subject to the Federal Seed Act.\3\ 
Moreover, the FTC has specifically listed items it has deemed not to be 
consumer commodities subject to the Act, including automotive products, 
bottled gas for heating or cooking, Christmas light sets, cigarette 
lighters, clothing and other textiles, durable goods, gift ties and 
tapes, gift wraps, greeting cards, hardware, inks, lawn and garden 
supplies, magnetic recording tape, paints and kindred products, pet 
care supplies, safety flares, safety pins, school supplies, sewing 
accessories, small arms ammunition, souvenirs, stationery and writing 
supplies, threads, tools, toys, and typewriter ribbons.\4\ Imported 
consumer commodities are also excluded from FTC enforcement.\5\
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    \3\ 15 U.S.C. 1459.
    \4\ 16 CFR 503.2, 503.5. Many products exempt from the FTC's 
jurisdiction under the FPLA nevertheless fall within the purview of 
individual state laws. 15 U.S.C. 1461. See also National Institute 
of Standards and Technology Handbook 130, Uniform Laws and 
Regulations in the areas of legal metrology and engine fuel quality 
(2014 ed.) (compilation of state and federal laws and regulations 
pertaining to product labeling and packaging).
    \5\ 15 U.S.C. 1456(c).
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    Section 1453 of the Act, 15 U.S.C. 1453, directs the Commission to 
issue regulations requiring that all ``consumer commodities'' be 
labeled to disclose: (a) The identity of the commodity (e.g., 
detergent, sponges), which must appear on the principal display panel 
of the commodity in a conspicuous type and position so that it is easy 
to read and understand; \6\ (b) the name and place of business of the 
product's manufacturer, packer, or distributor; \7\ and (c) the net 
quantity of contents in terms of weight, measure, or numerical count, 
with such disclosure's placement and content in accordance with the 
Rules.\8\ The Rules detail how units of weight or mass and measure must 
be stated, and require use of both U.S. measures (e.g., pounds, feet, 
and gallons) and metric measures.\9\
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    \6\ 16 CFR 500.4. The identity must be expressed either as the 
name required by any applicable federal law or regulation, or in the 
absence thereof, the common or usual name of the commodity, or, in 
the absence thereof, the generic name or other appropriately 
descriptive terms that include a statement of function of the 
product.
    \7\ 16 CFR 500.5.
    \8\ 16 CFR 500.6(b). The Office of Weights and Measures of the 
National Institute of Standards and Technology, U.S. Department of 
Commerce, is authorized to promote to the greatest practical extent 
uniformity in state and federal regulation of the labeling of 
consumer commodities. 15 U.S.C. 1458(a)(2).
    \9\ The FPLA was amended in 1992 to require use of metric 
measurements. 15 U.S.C. 205b. In 1994, the FTC modified its 
regulations accordingly. 59 FR 1872 (Jan. 12, 1994).
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    Title 16 CFR parts 500 through 503 (or the ``Rules'') also specify 
net quantity requirements for packages containing more than one product 
or unit, including: (a) ``multi-unit packages,'' defined as packages 
containing more than one individually packaged or labeled unit of an 
identical commodity; \10\ (b) ``variety packages,'' defined as packages 
containing two or more individual packages or units of similar, but not 
identical, commodities; \11\ and (c) ``combination packages,'' defined 
as packages containing more than one individual package or unit of 
different commodities.\12\
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    \10\ 16 CFR 500.27.
    \11\ 16 CFR 500.28.
    \12\ 16 CFR 500.29.
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    The Act grants the FTC discretionary authority when necessary to 
prevent consumer deception or to facilitate value comparisons.\13\ The 
FTC has used this authority to issue regulations prohibiting three 
types of representations. First, the Rules prohibit the use of the term 
``cents-off'' or words of similar import on packaging, unless, among 
other things, the claim reflects a true savings from the seller's 
ordinary and customary price.\14\ Second, the Rules prohibit the term 
``introductory offer'' or words of similar import on packaging unless, 
among other things, the product is new, has been changed in a 
substantial respect, or is being introduced into the trade area for the 
first time.\15\ Third, the Rules prohibit the term ``economy size'' or 
words of similar import on packaging unless, among other things, the 
product is offered at a per-unit price reduced at least five percent 
from the actual retail price of all other differently sized packages of 
the same product offered at the same time.\16\
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    \13\ 15 U.S.C. 1454(c). This discretionary authority enables the 
FTC to address four situations: (1) Setting size standards that 
supplement label statements of net quantity; (2) regulating 
packaging that claims a product price is lower than its customary 
retail price; (3) requiring labels to use common names or listing 
ingredients in order of decreasing prominence; and preventing 
nonfunctional slack-fill. 15 U.S.C. 1454(c).
    \14\ 16 CFR 502.100.
    \15\ 16 CFR 502.101(b)(1). The Rules prohibit introductory 
offers in a trade area for a duration in excess of six months. 16 
CFR 502.101(b)(3).
    \16\ 16 CFR 502.102.
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    The Commission completed its last review of the Rules in 1993, and 
modified the Rules in 1994.\17\
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    \17\ 59 FR 1872 (Jan. 12, 1994).
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II. Regulatory Review Program

    Since 1992, the Commission's regulatory review program has 
systematically reviewed Commission regulations to ensure that they 
continue to achieve their intended goals without unduly burdening 
commerce. The Commission schedules its regulations and guides for 
review on a ten-year cycle; i.e., all rules and guides are scheduled to 
be reviewed ten years after implementation and ten years after the 
completion of each review. The Commission publishes this schedule 
annually, with adjustments in response to public input, changes in the 
marketplace, and resource demands.\18\
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    \18\ 78 FR 30798 (May 23, 2013).
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    When the Commission reviews a rule or guide, it publishes a notice 
in the Federal Register seeking public comment on the continuing need 
of the rule or guide as well as its costs and benefits to consumers and 
businesses.

[[Page 15274]]

Based on this feedback, the Commission may modify or repeal the rule or 
guide to address public concerns or changed conditions, or to reduce 
undue regulatory burden. Therefore, the Commission now solicits 
comments on, among other things, the economic impact of, and the 
continuing need for, the FPLA Rules; the benefits of the Rules to 
consumers purchasing products covered by them; and the burdens the 
Rules place on businesses.

III. Request for Comment

    The Commission seeks public comment on: (a) Regulations under 
Section 4 of the Fair Packaging and Labeling Act, 16 CFR Part 500; (b) 
Exemptions from Requirements and Prohibitions under Part 500, 16 CFR 
Part 501; (c) Regulations under Section 5(c) of the Fair Packaging and 
Labeling Act, 16 CFR Part 502; and (d) Statements of General Policy or 
Interpretation, 16 CFR Part 503. Specifically, the Commission solicits 
comments on the following questions related to the Rules.
    (1) Is there a continuing need for the Rules as currently 
promulgated? Why or why not?
    (2) What benefits have the Rules provided to, or what significant 
costs have the Rules imposed on, consumers? Provide any evidence 
supporting your position.
    (3) What modifications, if any, should the Commission make to the 
Rules to increase their benefits or reduce their costs to consumers?
    (a) Provide any evidence supporting your proposed modifications.
    (b) How would these modifications affect the costs and benefits of 
the Rules for consumers and businesses, including small businesses?
    (4) What impact have the Rules had in promoting the flow of 
truthful information to consumers or preventing the flow of deceptive 
information to consumers? Provide any evidence supporting your 
position.
    (5) What benefits, if any, have the Rules provided to, or what 
significant costs, including costs of compliance, have the Rules 
imposed on businesses, including small businesses? Provide any evidence 
supporting your position.
    (6) What modifications, if any, should be made to the Rules to 
increase their benefits or reduce their costs to businesses, including 
small businesses?
    (a) Provide any evidence supporting your proposed modifications.
    (b) How would these modifications affect the costs and benefits of 
the Rules for consumers and businesses, including small businesses?
    (7) Provide any evidence concerning the degree of industry 
compliance with the Rules. Does this evidence indicate that the Rules 
should be modified? If so, why and how? If not, why not?
    (8) Provide any evidence concerning whether any of the Rules' 
provisions are no longer necessary. Explain why these provisions are 
unnecessary.
    (9) What potentially unfair or deceptive practices concerning 
product packaging and labeling, falling within the FTC's purview under 
the Act, are occurring in the marketplace?
    (a) Provide any evidence, such as empirical data, consumer 
perception studies, or consumer complaints, demonstrating the extent of 
such practices.
    (b) Provide any evidence demonstrating whether such practices cause 
consumer injury.
    (c) With reference to such practices, should the Rules be modified? 
If so, why and how? If not, why not?
    (10) What modifications, if any, should be made to the Rules to 
account for current or impending changes in technology or economic 
conditions?
    (a) Provide any evidence supporting the proposed modifications.
    (b) How would these modifications affect the costs and benefits of 
the Rules for consumers and businesses, including small businesses?
    (11) Do the Rules duplicate or conflict with other federal, state, 
or local laws or rules, such as those enforced by U.S. Food and Drug 
Administration? If so, how?
    (a) Provide any evidence supporting your position.
    (b) With reference to the asserted conflicts, should the Rules be 
modified? If so, why and how? If not, why not?
    (12) Provide any evidence concerning whether the Rules have 
assisted in promoting national consistency with respect to product 
packaging and labeling.
    (13) Are there foreign or international laws, regulations, or 
standards with respect to product packaging and labeling that the 
Commission should consider as it reviews the Rules? If so, what are 
they?
    (a) Should the Rules be modified in order to harmonize with these 
international laws, regulations, or standards? If so, why and how? If 
not, why not?
    (b) How would such harmonization affect the costs and benefits of 
the Rules for consumers and businesses, including small businesses?
    (c) Provide any evidence supporting your position.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before May 21, 2014. 
Write ``FPLA Rules, 16 CFR Parts 500-503, Project No. R411015'' on your 
comment. Your comment--including your name and your state--will be 
placed on the public record of this proceeding, including, to the 
extent practicable, on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the 
Commission tries to remove individuals' home contact information from 
comments before placing them on the Commission Web site. Because your 
comment will be made public, you are solely responsible for ensuring 
your comment doesn't include any sensitive personal information, such 
as anyone's Social Security number, date of birth, driver's license 
number or other state identification number or foreign country 
equivalent, passport number, financial account number, or credit or 
debit card number. You are also solely responsible for ensuring your 
comment doesn't include any sensitive health information, like medical 
records or other individually-identifiable health information. In 
addition, don't include any ``[t]rade secret or any commercial or 
financial information which is . . . privileged or confidential,'' as 
discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 
4.10(a)(2), 16 CFR 4.10(a)(2). In particular, don't include 
competitively sensitive information such as costs, sales statistics, 
inventories, formulas, patterns, devices, manufacturing processes, or 
customer names.
    If you want the Commission to treat your comment as confidential, 
you must file it in paper form, with a request for confidential 
treatment, and you must follow the procedure explained in FTC Rule 
4.9(c), 16 CFR 4.9(c).\19\ Your comment will be kept confidential only 
if the FTC General Counsel grants your request in accordance with the 
law and the public interest.
    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To ensure the Commission considers your online 
comment, you must file it at https://ftcpublic.commentworks.com/ftc/fairlabelingact by following the instructions on the web-based form. If 
this Notice appears at http://www.regulations.gov/#!home, you also

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may file a comment through that Web site.
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    \19\ In particular, the written request for confidential 
treatment that accompanies the comment must include the factual and 
legal basis for the request and must identify the specific portions 
of the comment to be withheld from the public record. See FTC Rule 
4.9(c), 16 CFR 4.9(c).
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    If you file your comment on paper, write ``FPLA Rules, 16 CFR Parts 
500-503, Project No. R411015'' on your comment and on the envelope and 
mail or deliver it to the following address: Federal Trade Commission, 
Office of the Secretary, Room H-113 (Annex G), 600 Pennsylvania Avenue 
NW., Washington, DC 20580. If possible, submit your paper comment to 
the Commission by courier or overnight service.
    Visit the Commission Web site at http://www.ftc.gov to read this 
Notice and the news release describing it. The FTC Act and other laws 
that the Commission administers permit the collection of public 
comments to consider and use in this proceeding as appropriate. The 
Commission will consider all timely and responsive public comments 
received on or before May 21, 2014. You can find more information, 
including routine uses permitted by the Privacy Act, in the 
Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

List of Subjects in 16 CFR Parts 500 Through 503

    Labeling, Packaging and containers.

    Authority:  15 U.S.C. 1453, 1454, 1455, 1456.

    By direction of the Commission.

Donald S. Clark
Secretary.
[FR Doc. 2014-06066 Filed 3-18-14; 8:45 am]
BILLING CODE 6750-01-P