FTC: Made In The USA Comments Concerning NTP Republic--P894219 Made in USA Policy Comment August 8, 1997 Office of the Secretary Re: Comments of NTP Republic Dear Sir/Madam: NTP Republic hereby responds to the Federal Trade Commission’s request for comments on its proposed Guides for the Use of U.S. Origin Claims. NTP Republic is a custom heat sealing manufacturer of vinyl packaging, in Bondsville, Massachusetts, and employs 65 people. The Company’s customers products are entirely U.S. made. NTP Republic strongly opposes the Commission’s proposal to weaken the standard for “Made in USA” claims from all or virtually all U.S. content to substantially all U.S. Content. Weakening the standard will lead to consumer deception. It will also deny NTP Republic the marketing advantage attributable to “Made in USA” products. I. Weakening the “Made in USA” standard Will Deceive a Substantial Percentage of Consumers According to the Commission’s own findings, weakening the “Made in USA” standard would allow marketers to deceive at least one third of all consumer. In announcing its determination to weaken the “Made in USA” standard, the Commission concluded that consumers no longer expect “Made in USA” products to have all or virtually all U.S. content. To support that conclusion, the Commission cited the results of a 1995 Attitude Survey commissioned by its staff and found the 67% of the Attitude Survey respondents were willing to accept a “Made in USA” claim for a product with 70% U.S. content and U.S. final assembly. Based on that finding, however, 33% of the respondents were not willing to accept such a “Made in USA” claim. Thus, the evidence cited by the Commission indicates that weakening the “Made in USA” standard will deceive one third of consumers. Other consumer perception surveys before the commission suggest that the substantially all standard actually will deceive a majority of consumers. For example, the 1991 FTC Copy test found that 77% of consumers expect a “Made in USA” product to have all or almost all U.S. content. The commission noted several other surveys that produced similar results:
II The Proposed Safe Harbors for “Made in USA” Claims Increase The Potential Level of Consumer Deception The Proposed guides set forth two alternative safe harbors to demonstrate a reasonable basis for a “Made in USA” claim under the substantially all standard. First, a product may be marked “Made in USA” if U.S. manufacturing costs represent 75% of the total manufacturing costs for the product and the product was last substantially transformed in the United States. Second, a product may be marked “Made in USA” if the product was last substantially transformed in the United States and all significant inputs were last substantially transformed in the United States. These safe harbors will not comport with the expectations of a majority of consumers that “Made in USA” means all or virtually all U.S. origin. In fact, as discussed below, the safe harbors do not even ensure that a product meets the weaker substantially all standards. A The 75% U.S. Content Safe Harbor The 75% U.S. content safe harbor has two significant loopholes that allow products with less than 75% U.S. content to be labeled “Made in USA”. First, the safe harbor only requires a manufacturer to trace the origin of inputs that are likely to have significant foreign content. Therefore, inputs that contain insignificant foreign content can be counted as 100% U.S. origin. For many products, the safe harbor expressly limits the obligation to identify foreign content to input “one step back” in the manufacturing process. As a result, a manufacturer can meet the safe harbor and advertise its product as “Made in USA” even if the product has less that 75% U.S. content. In fact, if a product has many parts, each of which the manufacturer believes contain only insignificant foreign content, the actual U.S. content could fall well below 75%. A second loophole in the 75% U.S. content safe harbor allows a manufacturer to manufacturer to average its costs to determine whether a product line meets the substantially all standard. Individual products that do not meet the 75% standard, nevertheless can be marked as “Made in USA” so long as the average U.S. content is 75%. Consumers in the marketplace will have no basis to distinguish products that meet the safe harbor from those that fall below it. In addition to these loopholes, the 75% U.S. content safe harbor does not ensure that the majority of the parts or labor that go into a product are U.S. origin. In fact, the outcome under the test does not turn on the amount or value of U.S. parts and labor, but instead depends on the cost of imported parts and labor. By sourcing from the lowest cost country possible, a manufacturer can maximize the imported parts and labor that go into a product while remaining within the safe harbor. In fact, it is possible for a product made from 100% foreign parts or materials to meet the 75% U.S. content safe harbor. These results are contrary to consumers views that both the origin of parts and the location of processing are significant in defining “Made in USA”. The Two Levels of Substantial Transformation Safe Harbor The second safe harbor, two levels of substantial transformation, similarly does not ensure that a “Made in USA” product conforms to consumers’ expectations. The Commission itself noted that minor processing steps can satisfy the substantial transformation test:
The Proposed Guides specify that a product with more than 25% foreign content can meet the two levels of substantial transformation safe harbor. In fact, because the safe harbor does not impose any ceiling on foreign content, a product with substantially more than 25% foreign content by value can qualify as “Made in USA”. That result runs contrary to the Commission’s findings about consumer acceptance of “Made in USA” claims. Moreover, the two levels of substantial transformation safe harbor (like the 75% U.S. content safe harbor) can apply to products made from 100% foreign parts. Again, this result is contrary to consumers’ belief that the “Made in USA” definition relates to both parts and processing. * * * For all of these reasons NTP Republic strongly urges the Commission not to weaken the standard for unqualified “Made in USA” claims and instead to reaffirm the all or virtually all standard. In Addition, the Commission should revise and expand the provisions of the Proposed Guides relating to qualified U.S. origin claims, U.S. origin claims for specific processes or parts, and comparative claims. Further guidance on these issues with the framework of the all or virtually all standard would (1) permit marketers to derive whatever market advantage applies to a product that is partially U.S. made; (2) increase the information available to consumers regarding the U.S. content of products; and (3) ensure that consumers are not deceived as to the content of a product labeled “Made in USA”. Respectfully submitted, James J. McCarthy |