Applying FTC Consumer Protection Standards in the Sale of Outdoor Plants

Even though the FTC has rescinded its Nursery Guides, established truth-in-advertising standards still apply to the sale of trees, shrubs, and other products used for outdoor planting. Industry members also should consider long-standing FTC guidance regarding products collected from the wild state.

For years, the Federal Trade Commission’s Nursery Guides offered insights to industry members into how the FTC Act’s prohibition on deceptive and unfair practices applied to their business. The Guides specifically addressed the marketing and sale of trees, shrubs, vines, biennials and perennials, bulbs, and other products customarily used for outdoor planting.

Since 1992, the FTC has undertaken a systematic review of each of its rules and guides to see if they still serve their purpose. Is there a continuing need for the rule or guide? Has the rule or guide been affected by any changes in the marketplace? The FTC asked people to weigh in on the Nursery Guides. After considering public comments and determining that many of the practices addressed in the Guides are no longer prevalent in the nursery industry, the Commission voted in 2019 to rescind the Nursery Guides.

But even without the Nursery Guides, consumers are still protected in the marketplace. It’s the law – and it’s always been the law – that members of the nursery industry are prohibited from engaging in deceptive and unfair trade practices. People in the nursery business must continue to follow the law articulated in FTC and court decisions, both of which are generally applicable to all industries. For example, nurseries and related businesses must have appropriate substantiation to support all objective product claims they convey to consumers acting reasonably under the circumstances. That may include representations about the quantity, size, grade, species, hardiness, and price of plants they sell. Furthermore, if the disclosure of information is necessary to prevent deception, disclosures must be clear and conspicuous. Should the Commission determine that certain practices in the sale of outdoor plants are materially misleading, the agency can continue to challenge illegal conduct through enforcement actions under Section 5 of the FTC Act.

Although the Commission voted to rescind the Guides, some commenters remarked on the continuing the usefulness of the section on wild plants:

It is an unfair or deceptive act or practice to sell, offer for sale, or distribute industry products collected from the wild state without disclosing that they were collected from the wild state; provided, however, that plants propagated in nurseries from plants lawfully collected from the wild state may be designated as “nursery-propagated.”

The Commission believes this interpretation of how the FTC Act applies to the sale of wild plants remains beneficial to businesses and consumers. Therefore, companies should keep that interpretation in mind when advertising, labeling, or selling plants or other products collected from the wild state.

Looking for general guidance on FTC consumer protection standards? Visit the FTC’s Business Center, business.ftc.gov.
 

Your Opportunity to Comment

The National Small Business Ombudsman and 10 Regional Fairness Boards collect comments from small businesses about federal compliance and enforcement activities. Each year, the Ombudsman evaluates the conduct of these activities and rates each agency’s responsiveness to small businesses. Small businesses can comment to the Ombudsman without fear of reprisal. To comment, call toll-free 1-888-REGFAIR (1-888-734-3247) or go to www.sba.gov/ombudsman.