Daily Rules, Proposed Rules, and Notices of the Federal Government
On March 14, 2011, the Federal Trade Commission (“FTC” or “Commission”) invited comment on its Rules and Regulations (“Fur Rules” or “Rules”) under the Fur Products Labeling Act (“Fur Act” or “Act”), including its Fur Products Name Guide (“Name Guide”).
The Commission declines to propose other amendments suggested by commenters. Although some supported changing the Name Guide's required name for
This supplementary information section first provides background on the Fur Act and Rules, the Name Guide, TFLA, and this rulemaking. Next, it summarizes the comments. Finally, it analyzes those comments and discusses the proposed amendments.
The Fur Act prohibits misbranding and false advertising of fur products, and requires labeling of most fur products.
The Rules also include detailed labeling specifications. For example, the Rules specify an exact label size of 1.75 inches by 2.75 inches,
Finally, the Fur Act requires the Rules to provide for separate and continuing guaranties.
The Fur Act requires the Commission to maintain “a register setting forth the names of hair, fleece, and fur-bearing animals.”
The Commission first published the Name Guide in 1952. Under the Fur Act, the Commission can amend the Name Guide only “with the assistance and cooperation of the Department of Agriculture and the Department of the Interior” and “after holding public hearings.”
In 2010, Congress enacted TFLA,
No provision of [the Fur Act] shall apply to a fur product—(1) the fur of which was obtained from an animal through trapping or hunting; and (2) when sold in a face to face transaction at a place such as a residence, craft fair, or other location used on a temporary or short term basis, by the person who trapped or hunted the animal, where the revenue from the sale of apparel or fur products is not the primary source of income of such person.
In March 2011, as part of its comprehensive program to review all FTC rules and guides and in response to TFLA, the Commission opened a review of the Name Guide by seeking comment. As part of its regulatory review program,
The Commission also held a public hearing on December 6, 2011. The hearing was in roundtable format with an opportunity for audience participation. Four commenters participated in the roundtable: The Humane Society of the United States (“HSUS”); the Fur Information Council of America (“FICA”); the National Retail Federation (“NRF”); and Finnish Fur Sales (“Finnish Fur”). In addition, the hearing included representatives from the United States Department of Agriculture (“USDA”), the United States Geological Survey (“USGS”), and the Fish and Wildlife Service (“FWS”).
Commenters disagreed about whether and how to amend the Name Guide, particularly the name for
Commenters focused on whether the Commission should continue to require labeling
All who addressed the subject agreed that
HSUS recommended eliminating “Asiatic Raccoon” and replacing it with “Raccoon Dog” for three reasons. First, it asserted that “Raccoon Dog” is the Ascientifically accepted common name.”
Second, HSUS asserted that “Raccoon Dog” has long been the “most widely-accepted common name of the species.”
Finally, HSUS contended that “Asiatic Raccoon” is confusing and misleading, while “Raccoon Dog” is not. HSUS observed that “the species is not a raccoon” and “is not just found in Asia, but * * * in numerous European countries.”
Other commenters opposed replacing “Asiatic Raccoon” with “Raccoon Dog.” They argued that ITIS or other scientific sources should not determine an animal's name for labeling purposes, that “Asiatic Raccoon” better describes the animal, and that “Raccoon Dog” labels would mislead consumers and harm retail sales.
Several hearing participants, including government representatives, asserted that ITIS is not a common-name repository. For example, FICA described ITIS as “a tool used internally within the government by scientists involved in wildlife regulatory issue[s] * * * [and] not intended to regulate the sale of fur in the retail marketplace.”
More generally, some commenters criticized HSUS's proposal to rely on “scientific consensus” rather than consumer perception.
Indeed, two commenters noted that consumers have familiarity with “Asiatic Raccoon” through marketplace exposure. Specifically, FICA and Finnish Fur stated that, prior to TFLA's enactment, most
Moreover, several commenters asserted that “Asiatic Raccoon” is superior to “Raccoon Dog” because it provides more information to consumers. For example, FICA stated that the term “Raccoon” accurately describes
Furthermore, some commenters criticized “Raccoon Dog” as inaccurate, asserting that
Finally, commenters warned that requiring “Raccoon Dog” on a label would mislead consumers into thinking that the species either was, or was closely related to, domestic dog, thereby harming
NRF suggested “Tanuki” and “Magnut” as alternative names for
FICA, Finnish Fur, and Finland's Ministries for Foreign Affairs and of Agriculture and Forestry urged the Commission to allow labeling
[European regulation is] one of the strictest in the world. The EU is party to the European Convention for the protection of animals kept for farming purposes. The Convention aims to protect animals against any unnecessary suffering or injury.
As the animal welfare standards in place in Asian countries producing
HSUS, by contrast, opposed the name, describing it as “industry-coined.”
Commenters also suggested several miscellaneous revisions to the Name Guide. First, HSUS recommended adding a large number of specific common names so that each fur-bearing species has its own common name. For example, HSUS suggested replacing “chipmunk” with specific names for 25 chipmunk species, such as “California Chipmunk,” “Cliff Chipmunk,” etc.
Second, FICA recommended removing names of animals prohibited for sale as furs, such as domestic dog and cat, because including them is “confusing given their illegal status.”
One of the FTC's purposes here is enforcement * * * [Having the names listed] adds additional layers of enforcement. * * * And to have that additional ability to enforce is important. Quite honestly, I don't think a retailer should escape liability if the retailer is failing to label dog fur as dog when * * * domestic dog is not allowed to be sold in the United States.
Finally, Deckers Outdoor Corporation (“Deckers”) suggested the Name Guide allow the term “Sheepskin” in lieu of “Sheep” and “Lambskin” in lieu of “Lamb.” Deckers asserted that the required names are confusing to consumers.
All commenters who addressed the subject urged the Commission to reduce the amount of required information. For example, Deckers stated that “some of the required information * * * is not of interest to the consumer, and * * * may * * * obscure the information in which the consumer is really interested * * *”.
Other commenters requested limited disclosures for items containing small amounts of fur. FICA requested that labels for products with only a “small strip” of fur disclose only “fur” and no other information because consumers would not want that additional information.
Commenters also urged greater flexibility regarding the labels' size, the sequence and location of disclosures, and the requirements for attaching a single label to paired items like shoes. Several commenters criticized the requirement in § 301.27 that all labels measure 1.75 inches by 2.75 inches.
These requirements are simply not appropriate for the range of smaller garments that are now subject to this law, and would increase costs to retailers and consumers. Specific requirements on label dimensions also limit a retailer's ability to make a label with a dimension that is suitable to the product, for example narrow belts and gloves * * *. Moreover, consumers are not likely to want large, permanent labels on these small products.
To address the issue, NRF suggested requiring “that the label be `conspicuous, legible, and durable,' ” a standard that it described as “well understood in the industry” and consistent with labeling requirements in the Textile Act, Wool Act, and Care Labeling Rule.
Commenters also criticized the Rules' strict requirements for the order and placement of information on the labels. Regarding § 301.30's requirement that disclosures must be in a specified order, Deckers argued:
The specific order should be determined by the manufacturer, and not by regulation. As all required information must be the same size type, it is unclear why the Rules need to mandate the order of information supplied. Many footwear manufactures [sic], including Deckers Outdoor Corporation, need the flexibility to properly design a label so that it fits a wide range of products.
Commenters also favored lifting § 301.29's prohibition against disclosing on the front of a label any information other than FTC disclosures. Deckers noted that this prohibition may result in requiring multiple labels to comply with the Rules and state regulations.
Finally, several commenters recommended amending § 301.31, which requires that items sold in pairs, like shoes, must be “firmly attached to each other” until reaching the ultimate consumer or have a separate label attached to each item.
Footwear is sold to consumers in boxes, and only properly labeled samples are available for review prior to the consumer trying on a particular shoe/boot * * * Both the left and right shoe/boot is presented to the consumer at the point of sale.
McNeese submits that labeling only one shoe/boot with the required [Fur Act] information satisfies the purpose of the statute, which is to inform the consumer of the type of fur, method of treatment (if any), and country of harvest.
Zelman likewise objected to the attachment requirement, asserting that it would “hurt the trade.”
As discussed above, entities generally are not liable under the Fur Act if they receive a document guaranteeing that all products manufactured or transferred by the guarantor are not misbranded or falsely advertised or invoiced.
Two commenters recommended altering the scope of the Fur Rules' labeling requirements, which apply to “wearing apparel.” The Rules define “wearing apparel” as including “[a]ny articles of clothing or covering for any part of the body.”
After considering the record, the Commission proposes the following amendments: Updating the Name Guide while retaining “Asiatic Raccoon” as
This section first discusses why the Commission is retaining the name “Asiatic Racoon.” It then explains why it will not add “Finnraccoon” to the Name Guide. Finally, it discusses proposed amendments to update the Name Guide.
The Fur Act requires the Name Guide to prescribe “the true English names for the animals in question, or in the absence of a true English name for an animal, the name by which such animal
Second, the record indicates that consumers likely have become familiar with the name “Asiatic Raccoon” through fur labels. Based on its own investigations, HSUS noted that “Asiatic Raccoon” appears on fur labels “fairly often.”
Furthermore, HSUS's arguments against “Asiatic Raccoon” are not persuasive. The Commission does not agree that it should defer to ITIS in this instance. FWS and USGS representatives, including an ITIS-cited expert, agreed that ITIS is not intended as a source for common names.
Moreover, other names suggested by commenters have significant problems. “Raccoon Dog” could significantly mislead consumers about the animal's relationship to domestic dog. Specifically, industry commenters reported that two major department stores had stopped carrying items with such fur because consumers confused it with domestic dog.
The current Name Guide specifies “Asiatic Raccoon” as the sole name for
Despite some use of the term in marketing, there is no evidence that consumers understand that “Finnraccoon” is
Commenters made several suggestions for revising other Name Guide entries. HSUS and FICA pointed to several entries that appeared to reference the wrong species or contained typographical errors. In addition, HSUS suggested that the Name Guide provide a different common name for each species of fur-bearing animal. Finally, FICA requested removal of prohibited species, and Deckers requested “sheepskin” as a new name.
In light of the record, the Commission proposes updating the Name Guide to correct typographical errors and species misidentification. The Commission has not updated the Name Guide since 1967, and the taxonomic classifications for some animals have changed. Accordingly, the Commission proposes several corrections, such as changing the scientific name for “Ocelot” from