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Daily Rules, Proposed Rules, and Notices of the Federal Government

FEDERAL TRADE COMMISSION

16 CFR Part 301

Regulations Under the Fur Products Labeling Act

AGENCY: Federal Trade Commission.
ACTION: Notice of proposed rulemaking; request for comment.
SUMMARY: The Federal Trade Commission proposes to amend its Regulations under the Fur Products Labeling Act to update its Fur Products Name Guide, provide more labeling flexibility, incorporate recently enacted Truth in Fur Labeling Act provisions, and eliminate unnecessary requirements. The Commission does not propose changing or providing alternatives to the required name on labels fornyctereutes procyonoidesfur products. The Commission also does not propose changing the Rules' product coverage scope or continuing guaranty provisions.
DATES: Comments must be received on or before November 16, 2012.
ADDRESSES: Interested parties are invited to submit written comments electronically or in paper form by following the instructions in theSUPPLEMENTARY INFORMATIONsection below. Comments in electronic form should be submitted by using the following Web link:https://ftcpublic.commentworks.com/ftc/furrulesreviewnprm(and following the instructions on the web-based form). Comments filed in paper form should be mailed or delivered to the following address: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex O), 600 Pennsylvania Avenue NW., Washington, DC 20580, in the manner detailed in theSUPPLEMENTARY INFORMATIONsection below.
FOR FURTHER INFORMATION CONTACT: Matthew Wilshire, (202) 326-2976, Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580.
SUPPLEMENTARY INFORMATION: I. Introduction

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”).1 After considering the comments and holding a public hearing, the Commission proposes updating the Name Guide, providing greater labeling flexibility, incorporating provisions of the recently enacted Truth in Fur Labeling Act (“TFLA”), and, on its own initiative, deleting unnecessary requirements.

176 FR 13550 (Mar. 14, 2011). The Name Guide lists the English animal names that must appear on fur-product labels.

The Commission declines to propose other amendments suggested by commenters. Although some supported changing the Name Guide's required name fornyctereutes procyonoides,the Commission proposes retaining “Asiatic Raccoon” as the only name for that species. As discussed below, the record shows that “Asiatic Raccoon” is the best name to identify the animal for consumers. Furthermore, alternative names suggested by commenters either risk misleading consumers or cannot be used to identify the animal.

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.

II. Background A. The Fur Act and Rules

The Fur Act prohibits misbranding and false advertising of fur products, and requires labeling of most fur products.2 Pursuant to this Act, the Commission promulgated the Fur Rules. These Rules set forth disclosure requirements that assist consumers in making informed purchasing decisions.3 Specifically, the Fur Act and Rules require fur manufacturers, dealers, and retailers to label products made entirely or partly of fur. These labels must disclose: (1) The animal's name as provided in the Name Guide; (2) the presence of any used, bleached, dyed, or otherwise artificially colored fur; (3) that the garment is composed of, among other things, paws, tails, bellies, sides, flanks, or waste fur, if that is the case; (4) the name or Registered Identification Number of the manufacturer or other party responsible for the garment; and (5) the product's country of origin.4 In addition, manufacturers must include an item number or mark on the label for identification purposes.5

215 U.S.C. 69et seq.

316 CFR part 301.

415 U.S.C. 69b(2); 16 CFR 301.2(a).

516 CFR 301.40.

The Rules also include detailed labeling specifications. For example, the Rules specify an exact label size of 1.75 inches by 2.75 inches,6 require disclosures on the label in a particular order,7 and prohibit non-FTC information on the front of the label.8

616 CFR 301.27.

716 CFR 301.30.

816 CFR 301.29(a). By contrast, the Commission's Rules and Regulations (“Textile Rules”) under the Textile Fiber Products Identification Act (“Textile Act”), which apply to clothing generally, do not have such restrictions.

Finally, the Fur Act requires the Rules to provide for separate and continuing guaranties.9 These documents allow an entity to provide a guarantee to another entity that the fur products it manufactures or transfers are not mislabeled or falsely advertised or invoiced. Separate guaranties specifically designate particular fur products.10 Continuing guaranties, which guarantors file with the Commission, apply to “any fur product or fur handled by a guarantor.”11 The Act provides that a guaranty recipient will not generally be liable for violations related to the guaranteed goods.12

915 U.S.C. 69h; 16 CFR 301.46; 301.47; 301.48; and 301.48a.

1015 U.S.C. 69h(a)(1).

1115 U.S.C. 69h(a)(2).

1215 U.S.C. 69h(a).

B. The Name Guide

The Fur Act requires the Commission to maintain “a register setting forth the names of hair, fleece, and fur-bearing animals.”13 The Act further requires that these names “be 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 can be properly identified in the United States.”14 For example, theName Guide requires covered entities to labelmustela visonas “mink.”15

1315 U.S.C. 69e(a).

14 Id.

1516 CFR 301.0.

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.”16 Prior to this rulemaking, the Commission had amended the Name Guide twice, most recently in 1967.17

1615 U.S.C. 69e(b).

1732 FR 6023 (Apr. 15, 1967).

C. TFLA

In 2010, Congress enacted TFLA,18 which revoked one Fur Act exemption and replaced it with another. Specifically, TFLA deleted a Fur Act provision that authorized the Commission to exempt fur products of relatively low value from labeling requirements. Under that authority, the Fur Rules exempted products with a fur component valued at less than $150.19 TFLA eliminated thisde minimisexemption20 and enacted a new, more limited exemption for furs sold directly by trappers and hunters to end-use customers in certain face-to-face transactions (“hunter/trapper exemption”). The new exemption provides:

18Public Law 111-113.

1916 CFR 301.39(a).

20Public Law 111-113, § 2.

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.21

21 Id.at § 3.

In addition, TFLA required the Commission to initiate a review of the Name Guide.22

22 Id.at § 4.

D. Procedural Background

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,23 the Commission also sought comment on the Fur Rules generally.24 The Commission received 15 comments.25

23For further discussion of the program,see www.ftc.gov/opa/2011/07/regreview.shtm.

2476 FR 13550.

25The comments, along with a transcript of the Name Guide hearing, are available at:http://ftc.gov/os/comments/furlabeling/. Citations to comments will identify the commenter name and comment page number containing the relevant discussion (e.g.,“FICA at 8.”). Citations to one page comments will only state the commenter name. Citations to the hearing transcript will identify the relevant page and line (e.g.,“Tr. at 9, ln. 2.”).

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”).26

26USGS and FWS are agencies within the Department of the Interior.

III. The Record

Commenters disagreed about whether and how to amend the Name Guide, particularly the name fornyctereutes procyonoides. Several commenters also proposed eliminating unnecessary disclosure requirements and increasing labeling flexibility. In addition, HSUS urged the Commission to limit the use of continuing guaranties. Finally, two commenters suggested changes to the Fur Rules' product coverage.

A. The Name Guide

Commenters focused on whether the Commission should continue to require labelingnyctereutes procyonoidesas “Asiatic Raccoon” or change the name to “Raccoon Dog.” Commenters also discussed whether the Name Guide should allow “Finnraccoon” as an alternate name fornyctereutes procyonoidesthat are raised in Finland, and suggested amendments regarding other species.

1. “Raccoon Dog” Versus “Asiatic Raccoon”

All who addressed the subject agreed thatnyctereutes procyonoides'taxonomic classification is in the canidae family, which includes foxes, wolves, and domestic dogs.27 All commenters further agreed that raccoons are not closely related tonyctereutes procyonoides.Although both species are in the same order (carnivora), raccoons are in a different family (Procyonidae).28 Despite agreeing about the animal's taxonomy, commenters sharply disagreed about whether the Name Guide should require entities to label it “Asiatic Raccoon” or “Raccoon Dog.”

27 See, e.g.,attachment to HSUS comment at 31.

28 Seethe Smithsonian'sMammal Species of the Worldentry for “Raccoon,” available athttp://www.vertebrates.si.edu/msw/mswcfapp/msw/taxon_browser.cfm?msw_id=12300.

a. Support for “Raccoon Dog”

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.”29 Specifically, HSUS noted that the Integrated Taxonomic Information System (“ITIS”) listsnyctereutes procyonoides'common name as “Raccoon Dog.”30 At the hearing, HSUS explained that ITIS is “a result of a partnership of federal government agencies formed to satisfy the need for scientifically credible taxonomic information.”31 HSUS described ITIS members, which include FWS, the Smithsonian Institute, and USGS, as “neutral on the issue of how a particular industry, including the fur industry, identifies its products.”32 In addition, HSUS asserted that requiring ITIS's common names would assist consumers because the ITIS “Web site contains an easily accessible database with reliable information on species names and their hierarchical classification.”33

29HSUS at 7.

30 Seethe ITIS Report fornyctereutes procyonoides, available athttp://www.itis.gov/servlet/SingleRpt/SingleRpt?search_topic=TSN&search_value=183821.

31Tr. at 9, ln. 2-5.

32Tr. at 9, ln. 16-21.

33HSUS at 7.

Second, HSUS asserted that “Raccoon Dog” has long been the “most widely-accepted common name of the species.”34 As support, HSUS submitted a letter from biologist Lauren Nolfo-Clements attesting that scientists have used “Raccoon Dog” to describenyctereutes procyonoidesfor “well over a century.”35 In addition, HSUS cited references to the animal as “Raccoon-Like Dog” and “Raccoon Dog” in literature predating the Name Guide, including one encyclopedia claiming that the term “Asiatic Raccoon” was a “guise” to obscure the animal's relationship to dogs.36 HSUS also pointed to recent uses of “Raccoon Dog” in an FWS press release and in an official publication.37 HSUS did not, however, provide evidence thatconsumers are more familiar with, or more likely to recognize, “Raccoon Dog” than “Asiatic Raccoon.”38

34HSUS. at 8.

35HSUS at 13 (letter attachment).

36HSUS at 8-9.

37HSUS at 9.

38Tr. at 56, ln. 1-7.

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.”39 Thus, HSUS asserted, “Asiatic Raccoon” could mislead consumers about the species of the animal that produced the fur and its geographic origin.40 At the hearing, HSUS also asserted that “Raccoon Dog,” by contrast, would not mislead consumers because dogs are members of the canidae family, and therefore more closely related tonyctereutes procyonoidesthan raccoons.41

39HSUS at 9.

40HSUS at 9.

41Tr. at 48, ln. 21-23.

b. Support for “Asiatic Raccoon”

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.”42 Significantly, hearing participants from the government agreed that ITIS is not necessarily authoritative on common names. Specifically, Dr. Alfred Gardner from USGS, whom ITIS lists as an expert onnyctereutes procyonoides'taxonomy, explained that “[t]he primary function of ITIS is to keep abreast of the changes in scientific names * * * [and] not * * * to establish common names.”43 Dr. Gardner further stated that the use of common names listed in scientific guides is “not very consistent” outside of the wildlife management field.44 Ms. Sharon Lynn, Senior Wildlife Inspector for FWS, agreed that ITIS does not reflect a scientific consensus regarding species' common names.45

42Tr. at 15, ln. 9-12.

43Tr. at 26, ln. 5-8.

44Tr. at 14, ln. 5-6.

45Tr. at 13, ln. 6-9.

More generally, some commenters criticized HSUS's proposal to rely on “scientific consensus” rather than consumer perception.46 Consistent with that view, a representative from Finnish Fur attested that, in his experience, consumers would not be familiar with ITIS.47 NRF further observed, “how a product is marketed ought to be a critical factor in deciding” the animal's name because marketing often establishes commercial names for unfamiliar products.48

46Tr. at 16, ln. 16-25, Tr. at 17, ln. 1-6.

47Tr. at 17, ln. 11-14.

48Tr. at 28, ln. 19-21. NRF gave the example of “Kiwi” fruit as an English name established by marketing. Tr. at 28, ln. 22-25.

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, mostnyctereutes procyonoidesgarments did not meet the now-defunctde minimisexemption and, therefore, would have been labeled as “Asiatic Raccoon.”49 HSUS also acknowledged that “Asiatic Raccoon” appears on labels “fairly often.”50

49Tr. at 79, ln. 14-16.

50Tr. at 79, ln. 2.

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 describesnyctereutes procyonoidesbecause it has “rings around its eyes, [so] it clearly looks like a raccoon.”51 In addition, Ms. Lynn of FWS noted that the word “Asiatic” is helpful, despite the existence of Europeannyctereutes procyonoides,because it “gives you an idea where the animal originated naturally.”52 Ms. Lynn further explained that Asia is the species' “native habitat” and, therefore, “the Asiatic name would be a neutral” description.53 Ms. Lynn observed that using “Asiatic Raccoon” to refer to Europeannyctereutes procyonoidesis like the common practice of using “African Lion” to refer to lions raised in America.54

51Tr. at 42, ln. 12-13.

52Tr. at 38, ln. 22-23.

53Tr. at 39, ln. 6, 11-12.

54Tr. at 39, ln. 15-19.

Furthermore, some commenters criticized “Raccoon Dog” as inaccurate, asserting thatnyctereutes procyonoidesis not closely related to domestic dog and does not exhibit dog-like behavior. For example, NRF noted that the animal is “not a true-dog or dog-like canine within the genus Canis * * * Other canids, * * * such as wolves, coyotes, and jackals, are much more closely related to domestic dogs * * *”55 Moreover, according to FICA, “[t]he Asiatic/Finnraccoon exhibits vastly different behaviors than the dog. For example, it hibernates, climbs trees, and it participates in social grooming * * * [It] cannot bark, and it does not wag its tail.”56 In support, FICA submitted a report from wildlife biologist Robert Byrne confirming those behavioral differences and noting other contrasts, including diet (omnivore versus carnivore) and gait (clumsy versus “often very swift”).57

55NRF at 4. FICA similarly observed that “[a]lthough the Asiatic Raccoon * * * is part of the family Canidae, like many other animals (e.g.,fox, wolves, coyotes), it is completely different from a domestic dog.” FICA at 5.

56FICA at 5.

57FICA, Attachment 2 at 3-4.

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 harmingnyctereutes procyonoidesfur sales. FICA, citing news reports, suggested that the term “has had a devastating impact * * * by causing consumers to believe mistakenly that the product is related to domestic dog.”58 NRF concurred, opining that using “Raccoon Dog” to describe the species creates “a huge risk of misinformation.”59 As evidence, FICA and Finnish Fur reported that consumer exposure to the name “Raccoon Dog” has harmed sales. Specifically, major retailers Federated Department Stores and Lord & Taylor no longer sell the furs made from the animal because consumers mistake it for domestic dog.60 Thus, they asserted requiring “Raccoon Dog” would essentially “ban”nyctereutes procyonoidesfur “because [it] will no longer exist in the marketplace * * *”.61

58FICA at 6.

59Tr. at 36, ln. 7-10.

60Tr. at 60, ln. 1-7.

61Tr. at 59, ln. 21; Tr. at 43, ln. 19-21.

c. Alternatives to “Raccoon Dog” and “Asiatic Raccoon”

NRF suggested “Tanuki” and “Magnut” as alternative names fornyctereutes procyonoides. 62 Dr. Gardner supported “Tanuki” because it “doesn't carry any baggage.”63 HSUS, however, objected to both names because they are foreign words and, therefore, not true English names.64 Furthermore, HSUSrepresented that Internet searches for “Tanuki” and “Magnut” showed less usage than “Asiatic Raccoon” or “Raccoon Dog.”65

62NRF at 4. At the hearing, NRF clarified that it supported the current designation of “Asiatic Raccoon” and had proposed the alternatives only in the event that the Commission deleted “Asiatic Raccoon.” Tr. at 69, ln. 13-14.

63Tr. at 71, ln. 19-20.

64Tr. at 82, ln. 14-17.

65Tr. at 82, ln. 20-24.

2. “Finnraccoon”

FICA, Finnish Fur, and Finland's Ministries for Foreign Affairs and of Agriculture and Forestry urged the Commission to allow labelingnyctereutes procyonoidesraised in Finland as “Finnraccoon.” These commenters did not assert that those animals differ in characteristics fromnyctereutes procyonoidesraised in Asia. Rather, they advocated adding the name because “Finnraccoon” would alert consumers that the animal had been raised under European regulations, which they described as stricter and more humane than in Asia. For example, the Finnish Ministries stated:

[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 producingNyctereutes procyonoidosare, unfortunately, not as high level as those in place in Finland/Europe, the situation is confusing also to the consumers; the term “Asiatic raccoon” implies misleadingly that theNyctereutes procyonoidosfur originates from Asia, when in fact, [the] main part of the world trade originates from Finland.66

66Ministry for Foreign Affairs at 1; Ministry of Agriculture and Forestry at 1.

However, these commenters did not provide evidence that consumers were familiar with “Finnraccoon” or that “Finnraccoon” fur differs materially from othernyctereutes procyonoidesfur.67

67Tr. at 87, ln. 4-7; Tr. at 95, ln. 2-3 (Finnish Fur representative conceding that “from a scientific point of view, I don't know if there is a difference between Finnish and Asiatic”).

HSUS, by contrast, opposed the name, describing it as “industry-coined.”68 It further pointed out that fur labels would disclose the country of origin in any event.69

68Tr. at 90, ln. 19-20.

69Tr. at 91, ln. 20-24.

3. Other Suggested Name Guide Amendments

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.70 HSUS stated that the Commission should not use one name for multiple species because “[d]ifferent animals experience different sorts of welfare problems in fur production” and different conservation statuses.71 In addition, FICA and HSUS suggested changing several Name Guide entries to reflect updated taxonomy and to correct errors.72

70HSUS at 56 (attachment).

71Tr. at 19, ln. 17-18; Tr. at 20, ln. 4-5.

72FICA at 7. For example, both commenters reported that the Name Guide provides the wrong scientific name for ocelot. FICA at 8; HSUS at 61.

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.”73 HSUS disagreed, pointing out that:

73FICA at 8.

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.74

74Tr. at 117, ln. 12-21; Tr. at 118, ln. 2-8.

Commenter AAW agreed, noting that the Fur Rules help enforce the cat and dog fur prohibition “by ensuring that all furs are properly identified and labeled.”75

75AAW at 1. “AAW” did not otherwise identify him, her, or itself.

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.76 HSUS disagreed, however, noting the existence of serious problems in sheep-fur labeling prior to issuance of the Fur Rules and that sheepskin is not “skin” but rather fur.77

76Deckers 2-3.

77Tr. at 123, ln. 13-19; Tr. at 124, ln. 5-7.

B. Requests for Increased Labeling Flexibility

Six commenters78 criticized the Fur Rules' labeling provisions as overly prescriptive. Specifically, they argued that many labeling requirements provide no consumer benefits while imposing significant burdens. They further noted that TFLA's elimination of thede minimisexemption required labeling more fur products. As discussed below, these commenters recommended more limited disclosures and greater labeling flexibility.

78Deckers, FICA, NRF, the Footwear Distributors and Retailers of America (“FDRA”), McNeese Customs and Commerce (“McNeese”), and Stephen Zelman & Associates (“Zelman”).

1. Required Information

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 * * *”.79 Deckers, therefore, urged the Commission to no longer require disclosure of whether fur is natural, pointed, dyed, bleached, or artificially colored, at least for sheepskins, because an altered sheepskin “still looks like sheepskin.”80 Deckers also urged no longer requiring disclosure of “sides” or “flanks.” It asserted that “the term `side' is used in the industry to describe one half of an animal hide and is not a term used to describe a part of the animal” and that “a flank is considered the same as the belly, and thus its inclusion is redundant.”81

79Deckers at 2.

80Deckers at 3.

81Deckers at 3.

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.82 FICA did not, however, provide any evidence substantiating that assertion. FDRA similarly urged the Commission to revoke the requirement to disclose that the fur consists of paws and tails where the fur is limited to trim, which it suggested be defined as fifteen percent of the item or less.83

82FICA at 10.

83FDRA comment (single page).

2. Label Specifications

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.84 For example, Deckers noted that, “[w]hile the label size currently mandated by the Rules may be appropriate for larger apparel items * * * they are impossible to affix to smaller items * * *. The Rules should either exempt smaller products from the size requirements, or simply mandate that the information be no smaller thaninformation provided on other labels found on the product * * *”.85 NRF agreed, explaining

8416 CFR 301.27.

85Deckers at 6.

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.86

86NRF at 2.

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.87

87NRF at 2.See alsoFICA at 10; FDRA comment; Zelman at 2-3. NRF and FDRA criticized the Rules for requiring sewn-in labels. NRF at 3; FDRA comment. In fact, as discussed below, the Rules do not require sewn-in labels. Nevertheless, the Commission proposes an amendment making this clear.

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.88

88Deckers at 6.

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.89 NRF also requested more flexibility to decide what information appears on the fronts and backs of labels.90

89Deckers at 6-7.See alsoFICA at 9; McNeese at 3 (urging the Commission to allow labels that will accommodate disclosures required by foreign governments).

90NRF at 2-3. FDRA recommended eliminating a requirement to disclose fur origin for items that already disclose the garment's country of origin on a different label. FDRA comment. Zelman likewise urged not requiring any information on a fur label that is otherwise provided on another conspicuous label. Zelman at 3.

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.91 McNeese asserted that requiring firm attachment was “inconsistent with the manner in which footwear is sold”:92

9116 CFR 301.31(b).

92McNeese at 3.

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.93

93McNeese at 4.

Zelman likewise objected to the attachment requirement, asserting that it would “hurt the trade.”94

94Zelman at 4.

C. Proposal To Restrict Continuing Guaranties

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.95 One commenter, HSUS, expressed concern that these guaranty programs “are not sufficient to ensure that consumers receive accurate information about the fur content of garments.”96 HSUS further asserted that “[n]othing in the [Fur Act] prohibits the FTC from requiring that continuing guarantees [sic] specifically designate the fur products or furs guaranteed, as is required of separate guarantees [sic].”97 Therefore, HSUS recommended that the Commission require that “all guarantees [sic] * * * specifically designate the type of fur contained in the fur products or furs guaranteed,” which “would ensure that retailers * * * know exactly where they need to go for the information they should rely on in generating new labels and advertisements.”98

9515 U.S.C. 69h(a).

96HSUS at 10.

97HSUS at 10.

98HSUS at 11.

D. The Rules' Coverage

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.”99 FICA recommended amending the definition to exclude small items, such as shoes.100 FICA argued that these items have an “insignificant amount of fur” and would be difficult to label because of their small size.101 FICA further noted that excluding small objects would align the scope of the Fur Rules with the Textile Act,102 which exempts handbags and shoes.103 In contrast to FICA's request for narrower requirements, Deckers favored expanding the Rules' coverage to include faux-fur products. According to Deckers, doing so would “ensure that the consumer knows whether [he or she] is purchasing real or fake fur prior to making the purchase.”104

9916 CFR 301.1(b)(1).

100FICA at 9.

101FICA at 9.

10215 U.S.C. 70et seq.

10315 U.S.C. 70j. FICA also cited the Textile Act's legislative history regarding its coverage. FICA at 9, n. 18.

104Deckers at 2. In addition to proposing amendments, some commenters submitted more general views. FICA requested a process for obtaining “interpretations from the Commission” regarding technical requirements and complying with overlapping state and federal regulations. FICA at 10. The Commission's rules already provide such a mechanism.See16 CFR 1.1 through 1.4 (procedure for requesting advisory opinions). Deckers asked for clarification that the Rules do not apply to advertisements not linked to point of sale. Deckers at 7-8. Section 301.38(c) makes clear that the requirements do not apply to advertisements “not intended to aid, promote, or assist directly or indirectly in the sale or offering for sale of any specific fur products or furs.” 16 CFR 301.38(c). Finally, several individual commenters voiced support for requiring fur disclosures generally.See, e.g.,Karol comment at 1.

IV. Analysis

After considering the record, the Commission proposes the following amendments: Updating the Name Guide while retaining “Asiatic Raccoon” asnyctereutes procyonoides'only name; providing more labeling flexibility; conforming the Rules with TFLA; and eliminating unnecessary provisions. The Commission does not propose changing the Rules' scope or continuing guaranty provisions.

A. Name Guide

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.

1. The Commission Does Not Propose Replacing “Asiatic Raccoon”

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 animalcan be properly identified in the United States.”105 In 1961, the Commission applied that standard and determined that “Asiatic Raccoon” was the appropriate name fornyctereutes procyonoides. 106 Here, the record confirms that “Asiatic Raccoon” continues to be appropriate for two reasons. First, it describes the animal in a way that consumers in the United States can properly identify it. Ms. Lynn from FWS explained that the word “Asiatic” “gives you an idea where the animal originated naturally.”107 Critically, Ms. Lynn did not agree with HSUS that “Asiatic” is misleading. In fact, she described the term as “neutral.”108 In addition, as FICA observed,nyctereutes procyonoideshas a raccoon-like fur pattern around its eyes. Indeed, Dr. Nolfo-Clements' letter supporting HSUS's comment acknowledged that the animal “superficially resembles the racoons * * * that are native to the Americas.”109

10515 U.S.C. 69e(a).

10626 FR 10446 (Nov. 4, 1961).

107Tr. at 38, ln. 22-23.

108Tr. at 39, ln. 6, 11-12.

109HSUS at 14 (attached letter of Dr. Lauren Nolfo-Clements).

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.”110 Consistent with that statement, FICA and Finnish Fur explained that products usingnyctereutes procyonoidesas trim usually did not meet the now-defunctde minimisexemption, and therefore would have been labeled as “Asiatic Raccoon.”111 Because “Asiatic Raccoon” is the name that consumers have used to identify the animal since 1961, consumers likely understand this term. In addition, if the term confused or otherwise harmed consumers, evidence of such confusion should exist. The record, however, does not contain any such evidence.

110Tr. at 79, ln. 2.

111Tr. at 79, ln. 14-16.

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.112 Furthermore, scientific consensus is not the best measure of an animal's true English name or the name by which American consumers identify it. Scientists develop taxonomic schemes like ITIS for many purposes, but assisting with purchasing decisions is not one of them. The Commission likewise does not find dispositive the use of “Racoon Dog” in literature predating the Name Guide.113 Rather, the more relevant consideration is consumers' current familiarity with the term, based on more than 50 years of use. Finally, the Commission does not find “Asiatic Raccoon” misleading, even though some of those animals are raised in Europe. As discussed above, “Asiatic” refers, accurately, to the animal's native habitat. For consumers interested in where the fur originated, the labels separately provide that information.

112HSUS suggested that ITIS could serve as a consumer resource for information about the animal, but comments at the hearing indicated that consumers would not be familiar with ITIS. To the extent consumers would be inclined to research the term “Asiatic Raccoon” online, a google.com search performed on June 20, 2012, for example, shows that the first 17 results related tonyctereutes procyonoides.

113HSUS's repeated references to “Asiatic Raccoon” as a “trade name” appear to be based on speculation. Tr. at 63, ln. 13-16 (HSUS representative explaining the basis for the “trade name” assertion as “[t]he fact that [‘Asiatic Raccoon’] isn't listed anywhere reputable or scientific as being an accepted common name, [means that] I have to assume that some interest pushed it onto the list at some point”).

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.114 The suggested names “Tanuki” and “Magnut” are foreign words and are not names by which the animal can be identified in the United States as required by the Act. Although Dr. Gardner of the Smithsonian gave some support to “Tanuki,” HSUS reported that the term is not prevalent in the United States. Furthermore, there is no evidence establishing that consumers understand the term. No comments supported changing the name to “Magnut.”

114As discussed in section III.A.1.b,supra,the record indicates thatnyctereutes procyonoidesdiffers significantly from domestic dog.

2. The Commission Does Not Propose Allowing “Finnraccoon”

The current Name Guide specifies “Asiatic Raccoon” as the sole name fornyctereutes procyonoides.Two commenters suggested the Name Guide list “Finnraccoon” as an alternative to “Asiatic Raccoon” for Finnish-farmednyctereutes procyonoides.They argued that “Finnraccoon” would help consumers differentiate betweennyctereutes procyonoidesraised according to stricter European regulatory standards and those raised in Asia. As discussed above, the Fur Act requires Name Guide names to be the animal's “true English name” or a name by which the animal can be identified in the United States. The record indicates that “Finnraccoon” satisfies neither criteria. Thus, the Commission declines to propose it as an alternative name.

Despite some use of the term in marketing, there is no evidence that consumers understand that “Finnraccoon” isnyctereutes procyonoidesand that it is the same animal currently labeled as “Asiatic Raccoon.” In addition, the commenters' basis for the alternate name depends on purportedly superior European fur-farming practices, which can change and which the Commission cannot verify. In any event, the country of origin disclosure will alert consumers that the animal was raised in Europe. Accordingly, the Commission does not propose adding “Finnraccoon” to the Name Guide.115

115As an alternative to amending the Name Guide, FICA proposed an additional regulation allowing the name “Finnraccoon,” as the Rules allow for certain types of lamb fur. FICA at 5. However, those regulations require the fur to have certain characteristics affecting its appearance as wearing apparel.See, e.g.,16 CFR 301.9(a) (allowing term “Mouton Lamb” for fur that has been “straightened, chemically treated, and thermally set to produce a moisture repellant finish”). There is no evidence that “Finnraccoon” fur significantly differs in characteristics from other Asiatic Raccoon fur.

3. Proposed Name Guide Updates

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” fromfelis pardalistoleopardus pardalis.The following chart lists the amended NameGuide entries, with the new text in bold. Notably, the amended entries correct a misspelling ofnyctereutes procyonoides. 116

116Because commenters did not provide any evidence substantiating what they described as errors, the Commission proposes corrections only for errors it has independently verified with the assistance of FWS. In addition, the Commission declines to change the genus-species listing for “dog” from “canis familiaris” to “canis lupus familiaris” because doing so would conflict with the Dog and Cat Protection Act's definition of “dog fur.”See19 U.S.C. 1308(a)(5) (defining “dog fur” as “the pelt or skin of any animal of the speciesCanis familiaris”).

Name Order Family Genus-species Alpaca Artiodactyla Camelidae Lama pacos. Antelope Ungulata Bovidae Hippotragus niger and Antilope cervicapra. Bear, Polar ......do ......do Ursus maritimus. Calf Artiodactyla Bovidae Bos taurus. Cat, Leopard ......do ......do Prionailurus bengalensis. Cat, Lynx ......do ......do Lynx rufus. Cat, Margay ......do ......do Leopardus wiedii. Chipmunk ......do Sciuridae Tamias sp. Civet Carnivora Viverridae Viverra sp., Viverricula sp., Paradoxurus sp., and Paguma sp. Desman Soricomorpha Talpidae Desmana moschata and Galemys pyrenaicus. Fox ......do Canidae Vulpes vulpes, Vulpes macrotis. Fox, Blue ......do ......do Vulpes lagopus. Fox, White Carnivora Canidae Vulpes lagopus. Goat Artiodactyla Bovidae Capra hircus. Jaguar ......do Felidae Panthera onca. Jaguarundi ......do ......do Puma yagouaroundi. Kangaroo Diprotodontia Macropodidae Marcopus sp. Kangaroo-rat ......do Potoroidae Bettongia sp. Kid Artiodactyla Bovidae Capra hircus. Koala Diprotodontia Phascolarctidae Phascolarctos cinereus. Lamb Artiodactyla Bovidae Ovis aries. Leopard Carnivora Felidae Panthera pardus. Llama Artiodactyla Camelidae Lama glama. Marmot Rodentia Sciuridae Marmota bobak. Mole Soricomorpha Talpidae Talpa sp. Monkey Primates Cercopithecidae Colobus polykomos. Nutria ......do Myocastoridae .. Myocastor coypus. Ocelot Carnivora Felidae Leopardus pardalis Opossum Didelphimorphia Didelphidae Didelphis sp. Opossum, Australian Diprotodontia Phalangeridae Trichosurus vulpecula. Opossum, Ringtail ......do Pseudocheiridae Pseudocheirus sp. Opossum, South American Didelphimorphia Didelphidae Lutreolina crassicaudata. Otter Carnivora Mustelidae Lontra canadensis, Pteronura brasiliensis, and Lutra lutra. Panda Carnivora Ailuridae Ailurus fulgens. Pony Perissodactyla Equidae Equus caballus. Rabbit Lagomorpha Leporidae Oryctolagus cuniculus. Raccoon, Asiatic ......do Canidae Nyctereutes procyonoides. Raccoon, Mexican ......do Procyonidae Nasua sp. Reindeer Artiodactyla Cervidae Rangifer tarandus. Seal, Fur Carnivora Otariidae Callorhinus ursinus. Sheep Artiodactyla Bovidae Ovis aries. Skunk Carnivora Mephitidae Mephitis mephitis, Mephitis macroura, Conepatus semistriatus and Conepatus sp. Vicuna Artiodactyla Camelidae Vicugna vicugna. Viscacha Rodentia Chinchillidae Lagidium sp. Wallaby Diprotodontia Macropodidae Wal