Concurring Statement of Commissioner Roscoe B. Starek, III
Regarding Request for Public Comment on Proposed
File No. P89-4219
I have voted in favor of issuing the proposed Guides for comment, because I believe that the copy tests discussed in the Federal Register notice show that substantial minorities of consumers take contradictory meanings from "Made in USA" claims. In these circumstances, it is appropriate to engage in a form of balancing that may minimize the injury to all consumers from claims inconsistent with their understandings of "Made in USA." The proposed Guides strike the correct balance in recognizing that an unqualified "Made in USA" claim means that a product is substantially all made in the United States. As the proposed Guides make clear, qualified claims may be used to identify U.S. content for products that cannot satisfy a "substantially all" standard. Similarly, stronger claims may be used to identify products that have even higher levels of U.S. content. In any event, however, marketers must substantiate claims for a particular amount of U.S. content with competent and reliable evidence.(1)
The proposed safe harbors and examples should lessen the costs of compliance, although it may be more useful to businesses if the final Guides contain more definitive language in the examples, like the language used in the Green Guides.(2) The examples in the proposed Guides use tentative language to state that an ad or claim is "likely to be deceptive" or "would not likely be deceptive" rather than "is deceptive" or "is not deceptive."(3) Certainly, any advertising or labeling needs to be viewed in context, as the proposed Guides state.(4) The Commission looks at the overall impression created by an ad, and the existence of facts not described in the examples could alter the Commission's interpretation of whether a law violation has occurred. Nonetheless, departure from the more definitive language used in recent Commission interpretations of the FTC Act's requirements for environmental claims may discourage reliance on the proposed Guides. It will be interesting to see any comments that address this issue.
As I have stated on other occasions, I would have preferred to have had the benefit of litigated administrative records, including additional copy test evidence, addressing specific "Made in USA" advertising campaigns in different industries. A majority of this Commission decided to proceed differently. Over time we will know if this undertaking -- when combined with a consumer and business education campaign -- reduces confusion, encourages compliance, and provides consumers with more information on which to base their purchasing decisions.
1. Proposed Guides § VI.B. n.3.
2. See Guides for the Use of Environmental Marketing Claims, 16 C.F.R. Part 260 (using "is not deceptive" or "is deceptive" rather than "is not likely to be deceptive" or "is likely deceptive").
3. Compare, e.g., Proposed Guides § VIII.B., Examples 1 and 2, with Green Guides, 16 C.F.R. § 260.6(b), Examples 1 and 2.
4. Proposed Guides § VI.A.