[Federal Register Volume 85, Number 137 (Thursday, July 16, 2020)]
[Proposed Rules]
[Pages 43162-43165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13902]
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FEDERAL TRADE COMMISSION
16 CFR Part 323
[3084-AB64]
Made in USA Labeling Rule
AGENCY: Federal Trade Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') seeks
comment on this Notice of Proposed Rulemaking (``NPRM'') related to
``Made in USA'' and other unqualified U.S.-origin claims on product
labels.
DATES: Comments must be received by September 14, 2020.
ADDRESSES: Interested parties may file a comment online or on paper by
following the instructions in the Request for Comments part of the
SUPPLEMENTARY INFORMATION section below. Write ``MUSA Rulemaking,
Matter No. P074204'' on your comment, and file your comment online
through https://www.regulations.gov by following the instructions on
the web-based form. If you prefer to file your comment on paper, write
``MUSA Rulemaking, Matter No. P074204'' on your comment and on the
envelope and mail your comment to the following address: Federal Trade
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite
CC-5610 (Annex C), Washington, DC 20580, or deliver your comment to the
following address: Federal Trade Commission, Office of the Secretary,
Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex
C), Washington, DC 20024.
FOR FURTHER INFORMATION CONTACT: Julia Solomon Ensor (202-326-2377) or
Hampton Newsome (202-326-2889), Attorneys, Division of Enforcement,
Bureau of Consumer Protection, Federal Trade Commission, Room CC-9528,
600 Pennsylvania Avenue NW, Washington, DC 20580.
SUPPLEMENTARY INFORMATION:
I. Background
Since at least 1940,\1\ the Commission has pursued enforcement
actions to prevent unfair and deceptive ``Made in USA'' and other U.S.-
origin claims (``MUSA claims''). Currently, the Commission's
comprehensive MUSA program consists of compliance monitoring,
counseling, and targeted enforcement pursuant to the FTC's general
authority under Section 5 of the FTC Act, 15 U.S.C. 45.\2\ However,
Congress has also granted the FTC authority to address MUSA labeling,
including rulemaking authority, under a separate statute, 15 U.S.C.
45a.\3\ To date, the Commission has not exercised its rulemaking
authority under that provision.
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\1\ See, e.g., Vulcan Lamp Works, Inc., 32 F.T.C. 7 (1940).
\2\ Section 5 prohibits unfair or deceptive acts or practices in
or affecting commerce. An act or practice is deceptive if it is
likely to mislead consumers acting reasonably under the
circumstances and is material--that is, likely to affect a
consumer's decision to purchase or use the advertised product or
service. A claim need not mislead all--or even most--consumers to be
deceptive under the FTC Act. Rather, it need only be likely to
deceive some consumers acting reasonably. See FTC Policy Statement
on Deception, 103 F.T.C. 174 (1984) (appended to Cliffdale Assocs.,
Inc., 103 F.T.C. 110, 177 n.20 (1984) (``A material practice that
misleads a significant minority of reasonable consumers is
deceptive.''); see also FTC v. Stefanchik, 559 F.3d 924, 929 (9th
Cir. 2009) (``The FTC was not required to show that all consumers
were deceived . . . .'').
\3\ See Section 320933 of the Violent Crime and Law Enforcement
Act of 1994, Public Law 103-322, 108 Stat. 1796, codified in
relevant part at 15 U.S.C. 45a. Under the statute, the Commission
may issue a rule pursuant to 5 U.S.C. 553. Section 45a also states
that: ``This section shall be effective upon publication in the
Federal Register of a Notice of the provisions of this section.''
The Commission published such a notice in 1995 (60 FR 13158 (Mar.
10, 1995)).
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Recently, the FTC held a public workshop and collected public
comments in support of a review of its
[[Page 43163]]
MUSA program.\4\ Workshop participants and commenters discussed a
variety of issues, including consumer perception of MUSA claims,
concerns about the FTC's current enforcement approach, and potential
changes to the FTC's MUSA program, including through rulemaking. During
that proceeding, stakeholders expressed nearly universal support for
the Commission to exercise authority pursuant to 15 U.S.C. 45a to issue
a rule addressing MUSA claims. Commenters argued such a rule could have
a strong deterrent effect against unlawful MUSA claims without imposing
new burdens on law-abiding companies.\5\
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\4\ See https://www.ftc.gov/news-events/events-calendar/made-usa-ftc-workshop.
\5\ See generally Transcript of Made in USA: An FTC Workshop
(Sept. 26, 2019) at 63-72.
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For 80 years, the Commission has pursued enforcement actions that
have established the principle that unqualified MUSA claims imply no
more than a de minimis amount of the product is of foreign origin.\6\
In 1997, following consumer research and public comments, the
Commission published its Enforcement Policy Statement on U.S. Origin
Claims (``Policy Statement''), elaborating that a marketer making an
unqualified claim for its product should, at the time of the
representation, have a reasonable basis for asserting that ``all or
virtually all'' \7\ of the product is made in the United States.\8\ The
Commission has routinely applied this standard in its MUSA Decisions
and Orders since 1997. Specifically, during that time the Commission
issued 24 administrative Decisions and Orders, and entered into four
federal court settlements \9\ enforcing the ``all or virtually all''
standard.\10\ Therefore, to deter deceptive claims, enhance the
Commission's ability to obtain appropriate relief for consumers, and
provide additional certainty to marketers on the Commission's
enforcement approach, the Commission now proposes a MUSA Labeling Rule
incorporating this established standard pursuant to its rulemaking
authority under 15 U.S.C. 45a.
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\6\ See, e.g., Vulcan Lamp Works, Inc., 32 F.T.C. 7 (1940);
Windsor Pen Corp., 64 F.T.C. 454 (1964) (articulating this standard
as a ``wholly of domestic origin'' standard).
\7\ The Commission first used the ``all or virtually all''
language in the cases of Hyde Athletic Industries, File No. 922-3236
(consent agreement accepted subject to public comment Sept. 20,
1994) and New Balance Athletic Shoes, Inc., Docket 9268 (complaint
issued Sept. 20, 1994). In the 1997 Federal Register Notice
requesting public comment on Proposed Guides for the Use of U.S.
Origin Claims, the Commission explained that the ``all or virtually
all'' standard merely rearticulated longstanding principles
governing MUSA claims. FTC, Request for Public Comment on Proposed
Guides for the use of U.S. Origin Claims, 62 FR 25020 (May 7, 1997).
\8\ FTC, Issuance of Enforcement Policy Statement on ``Made in
USA'' and Other U.S. Origin Claims, 62 FR 63756, 63766 (Dec. 2,
1997). The Policy Statement also provides broad guidance on how the
Commission applies Section 5 of the FTC Act to such claims in
advertising and labeling. For example, the Policy Statement explains
that, in examining MUSA claims under the ``all or virtually all''
standard, the Commission considers several different factors
including the proportion of the product's total manufacturing costs
attributable to U.S. parts and processing, how far removed any
foreign content is from the finished product, and the importance of
the foreign content or processing to the product's overall function.
Id. For additional information, see http://business.ftc.gov/advertising-and-marketing/made-usa.
\9\ This includes two de novo settlements and two civil penalty
settlements for violations of administrative consent orders filed by
the Department of Justice at the FTC's request.
\10\ See generally FTC, Compilation of MUSA Cases, https://www.ftc.gov/tips-advice/business-center/advertising-and-marketing/made-in-usa.
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II. Proposed Rule
Section 45a grants the Commission authority to issue rules to
prevent unfair or deceptive acts or practices relating to MUSA
labeling.\11\ Specifically, the Commission ``may from time to time
issue rules pursuant to section 553 of title 5, United States Code''
requiring MUSA labeling to ``be consistent with decisions and orders of
the Federal Trade Commission issued pursuant to section 5 of the [FTC]
Act.'' The FTC may seek civil penalties for violations of such
rules.\12\
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\11\ See supra n.3.
\12\ The statute provides that violations of any rule
promulgated pursuant to the Section ``shall be treated by the
Commission as a violation of a rule under section 57a of this title
regarding unfair or deceptive acts or practices.'' For violations of
rules issued pursuant to 15 U.S.C. 57a, the Commission may commence
civil actions to recover civil penalties. See 15 U.S.C. 45(m)(1)(A).
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Consistent with these statutory provisions, the NPRM covers labels
on products that make unqualified MUSA claims. It tracks the
Commission's previous MUSA Decisions and Orders by prohibiting
marketers from including unqualified MUSA claims on labels unless: (1)
Final assembly or processing of the product occurs in the United
States, (2) all significant processing that goes into the product
occurs in the United States, and (3) all or virtually all ingredients
or components of the product are made and sourced in the United States.
The NPRM also covers labels making unqualified MUSA claims appearing in
mail order catalogs or mail order advertising.
To avoid confusion or perceived conflict with other country-of-
origin labeling laws and regulations, the NPRM specifies that it does
not supersede, alter, or affect any other federal or state statute or
regulation relating to country-of-origin labels, except to the extent
that a state country-of-origin statute, regulation, order, or
interpretation is inconsistent with the NPRM. The Commission invites
comment on whether the NPRM conflicts with any state country-of-origin
labeling requirements.
III. Request for Comment
The Commission seeks comments on any aspect of the NPRM. You can
file a comment online or on paper. For the Commission to consider your
comment, we must receive it on or before September 14, 2020. Write
``MUSA Rulemaking, Matter No. P074204'' 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
https://www.regulations.gov website.
Due to the public health emergency in response to the COVID-19
outbreak and the agency's heightened security screening, postal mail
addressed to the Commission will be subject to delay. We strongly
encourage you to submit your comments online through the https://www.regulations.gov website, by following the instruction on the web-
based form provided.
If you file your comment on paper, write ``MUSA Rulemaking, Matter
No. P074204'' on your comment and on the envelope, and mail your
comment to the following address: Federal Trade Commission, Office of
the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex C),
Washington, DC 20580, or deliver your comment to the following address:
Federal Trade Commission, Office of the Secretary, Constitution Center,
400 7th Street SW, 5th Floor, Suite 5610 (Annex C), Washington, DC
20024. If possible, submit your paper comment to the Commission by
courier or overnight service.
Because your comment will be placed on the public record, you are
solely responsible for making sure that your comment does not include
any sensitive or confidential information. In particular, your comment
should not include any sensitive personal information, such as your or
anyone else'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 making sure that
your comment does not include any sensitive health information, such as
medical records or other individually identifiable health information.
In
[[Page 43164]]
addition, your comment should not include any ``trade secret or any
commercial or financial information which . . . is privileged or
confidential''--as provided by 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)--including in
particular competitively sensitive information such as costs, sales
statistics, inventories, formulas, patterns, devices, manufacturing
processes, or customer names.
Comments containing material for which confidential treatment is
requested must be filed in paper form, must be clearly labeled
``Confidential,'' and must comply with FTC Rule 4.9(c). 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). Your comment will be kept
confidential only if the General Counsel grants your request in
accordance with the law and the public interest. Once your comment has
been posted publicly at www.regulations.gov--as legally required by FTC
Rule 4.9(b)--we cannot redact or remove your comment, unless you submit
a confidentiality request that meets the requirements for such
treatment under FTC Rule 4.9(c), and the General Counsel grants that
request.
Visit the FTC website to read this Notice of Proposed Rulemaking
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 that it receives on
or before September 14, 2020. For information on the Commission's
privacy policy, including routine uses permitted by the Privacy Act,
see https://www.ftc.gov/site-information/privacy-policy.
IV. Paperwork Reduction Act
The Paperwork Reduction Act (``PRA''), 44 U.S.C. 3501 et seq.,
requires federal agencies to seek and obtain Office of Management and
Budget (``OMB'') approval before undertaking a collection of
information directed to ten or more persons. The NPRM does not contain
information collection requirements that the OMB must approve under the
PRA.
V. Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA''), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996, requires an
agency to either provide an Initial Regulatory Flexibility Analysis
(``IRFA'') with a proposed rule, or certify that the proposed rule will
not have a significant impact on a substantial number of small
entities.\13\ The Commission recognizes some affected entities may
qualify as small businesses under the relevant thresholds. However, the
Commission does not expect that this NPRM, if adopted, would have the
threshold impact on small entities for two reasons. First, the NPRM
includes no new barriers to making claims, such as reporting or
approval requirements. Second, the proposed Rule merely codifies
standards established in FTC enforcement Decisions and Orders for more
than 20 years. Therefore, the NPRM imposes no new burdens on law-
abiding businesses.
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\13\ 5 U.S.C. 603-605.
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This document serves as notification to the Small Business
Administration of the agency's certification of no effect. Although the
Commission certifies under the RFA that the NPRM would not, if
promulgated, have a significant impact on a substantial number of small
entities, the Commission has determined it is appropriate to publish an
IRFA to inquire into the impact of the NPRM on small entities. The
Commission invites comment on the burden on any small entities that
would be covered and has prepared the following analysis:
1. Reasons for the NPRM
The Commission proposes the Made in USA Labeling Rule for two
primary reasons: To strengthen its enforcement program and make it
easier for businesses to understand and comply with the law.
Specifically, by codifying the existing standards applicable to MUSA
claims in a rule as authorized by Congress, the FTC will be able to
provide more certainty to marketers about the standard for making
unqualified claims on product labels. In addition, enactment of the
NPRM will enhance deterrence by authorizing civil penalties against
those making unlawful MUSA claims on product labels.
2. Statement of Objectives and Legal Basis
The objective of the NPRM is to prevent deceptive MUSA claims on
product labels. The legal basis for the Rule is the Made in USA
provisions of the Violent Crime Control and Law Enforcement Act of
1994, codified in relevant part at 15 U.S.C. 45a.\14\
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\14\ Per its terms, 15 U.S.C. 45a was effective upon its
publication in the Federal Register on March 10, 1995. See 60 FR
13158.
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3. Description and Estimated Number of Small Entities To Which the Rule
Will Apply
The Small Business Administration estimates that in 2018 there were
30.2 million small businesses in the United States. The NPRM will apply
to small businesses that make MUSA claims on product labels. The
Commission seeks comment and information regarding the estimated number
or nature of small business entities for which the NPRM would have a
significant economic impact.
4. Projected Reporting, Recordkeeping, and Other Compliance
Requirements
The NPRM imposes no affirmative reporting or recordkeeping
requirements. The NPRM's compliance requirements, consistent with the
Policy Statement and longstanding Commission case law, require that
marketers may not use unqualified U.S.-origin claims on product labels
unless final assembly or processing of the product occurs in the United
States, all significant processing that goes into the product occurs in
the United States, and all or virtually all ingredients or components
of the product are made and sourced in the United States. The NPRM
codifies the standard for MUSA claims established in Commission
Decisions and Orders, and no new obligations are anticipated.
5. Identification of Duplicative, Overlapping, or Conflicting Federal
Rules
Although there are other federal statutes, rules, or policies
relating to country of origin labeling, the Commission has not
identified any duplication, overlap, or conflict with the NPRM. The
Commission invites comment and information on this issue.
6. Discussion of Significant Alternatives
The Commission seeks comment and information on the need, if any,
for alternative compliance methods that would, consistent with the
statutory requirements, reduce the economic impact of the NPRM on small
entities. For example, the Commission is currently unaware of the need
to adopt any special provisions for small entities. However, if such
issues are identified, the Commission could consider alternative
approaches. Nonetheless, if the comments filed in response to this
notice identify small entities that are affected by the NPRM, as well
as alternative methods of compliance that would reduce the economic
impact of the NPRM on such entities, the Commission will consider the
feasibility of such alternatives and determine
[[Page 43165]]
whether they should be incorporated into the final rule.
VI. Communications by Outside Parties to the Commissioners or Their
Advisors
Written communications and summaries or transcripts of oral
communications respecting the merits of this proceeding, from any
outside party to any Commissioner or Commissioner's advisor, will be
placed on the public record. See 16 CFR 1.26(b)(5).
VII. Proposed Rule Language
List of Subjects in 16 CFR Part 323
Labeling, U.S. origin.
For the reasons stated in the preamble, the Federal Trade
Commission proposes to add part 323 to subchapter C, title 16 CFR as
set forth below:
PART 323--MADE IN USA LABELING
Sec.
323.1 Definitions.
323.2 Prohibited acts.
323.3 Applicability to mail order advertising.
323.4 Enforcement.
323.5 Relation to Federal and State laws.
Authority: 15 U.S.C. 45a.
Sec. 323.1 Definitions.
As used in this part:
(a) The term Made in the United States means any unqualified
representation, express or implied, that a product or service, or a
specified component thereof, is of U.S. origin, including, but not
limited to, a representation that such product or service is ``made,''
``manufactured,'' ``built,'' ``produced,'' ``created,'' or ``crafted''
in the United States or in America, or any other unqualified U.S.-
origin claim.
(b) The terms mail order catalog and mail order promotional
material mean any materials, used in the direct sale or direct offering
for sale of any product or service, that are disseminated in print or
by electronic means, and that solicit the purchase of such product or
service by mail, telephone, electronic mail, or some other method
without examining the actual product purchased.
Sec. 323.2 Prohibited acts.
In connection with promoting or offering for sale any good or
service, in or affecting commerce, as ``commerce'' is defined in the
Federal Trade Commission Act, it is an unfair or deceptive act or
practice within the meaning of section 5 of that Act to label any
product as Made in the United States unless the final assembly or
processing of the product occurs in the United States, all significant
processing that goes into the product occurs in the United States, and
all or virtually all ingredients or components of the product are made
and sourced in the United States.
Sec. 323.3 Applicability to mail order advertising.
To the extent that any mail order catalog or mail order promotional
material includes a seal, mark, tag, or stamp labeling a product Made
in the United States, such label must comply with Sec. 323.2 of this
part.
Sec. 323.4 Enforcement.
Any violation of this part shall be treated as a violation of a
rule under section 18 of the Federal Trade Commission Act, 15 U.S.C.
57a, regarding unfair or deceptive acts or practices.
Sec. 323.5 Relation to Federal and State laws.
(a) In general. This part shall not be construed as superseding,
altering, or affecting any other federal statute or regulation relating
to country-of-origin labeling requirements. In addition, this part
shall not be construed as superseding, altering, or affecting any other
State statute, regulation, order, or interpretation relating to
country-of-origin labeling requirements, except to the extent that such
statute, regulation, order, or interpretation is inconsistent with the
provisions of this part, and then only to the extent of the
inconsistency.
(b) Greater protection under State law. For purposes of this
section, a State statute, regulation, order, or interpretation is not
inconsistent with the provisions of this part if the protection such
statute, regulation, order, or interpretation affords any consumer is
greater than the protection provided under this part, as determined by
the Commission on its own motion or upon the petition of any interested
party.
By direction of the Commission,
April J. Tabor,
Secretary.
[FR Doc. 2020-13902 Filed 7-15-20; 8:45 am]
BILLING CODE 6750-01-P