[Federal Register: January 9, 2007 (Volume 72, Number 5)]
[Rules and Regulations]
[Page 901-902]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ja07-10]
=======================================================================
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
16 CFR Part 18
Guides for the Nursery Industry
AGENCY: Federal Trade Commission.
ACTION: Confirmation of guides.
-----------------------------------------------------------------------
SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') has
completed its regulatory review of the Guides for the Nursery Industry
(``Guides'' or ``Nursery Guides''), as part of the Commission's
systematic review of all current Commission regulations and guides,
and, with the exception of correcting a misspelled word, has determined
to retain the Guides in their current form.
DATES: This action is effective as of January 9, 2007.
ADDRESSES: Requests for copies of this notice should be sent to the
Consumer Response Center, Room 130, Federal Trade Commission, 600
Pennsylvania Ave., NW., Washington, DC 20580. The notice also is
available on the Internet at the Commission's Web site, http://www.ftc.gov
.
FOR FURTHER INFORMATION CONTACT: Janice Podoll Frankle, (202) 326-3022,
Attorney, Division of Enforcement, Bureau of Consumer Protection,
Federal Trade Commission, Washington, DC 20580. E-mail:
jfrankle@ftc.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
The Commission has determined, as part of its oversight
responsibilities, to review its rules and guides periodically to seek
information about their costs and benefits as well as their regulatory
and economic impact. The information obtained assists the Commission in
identifying rules and guides that warrant modification or rescission.
II. Background
The Commission issued its Nursery Guides in 1979.\1\ These Guides
address numerous sales practices for outdoor plants, trees, and
flowers, including deceptive claims regarding quantity, size, grade,
kind, species, age, maturity, condition, vigor, hardiness, growth
ability, price, and origin or place where grown.
---------------------------------------------------------------------------
\1\ Industry guides are administrative interpretations of laws
issued by the Commission for the guidance of the public in
conducting its affairs in conformity with legal requirements. 16 CFR
1.5.
---------------------------------------------------------------------------
In 1994, as part of its periodic review, the Commission amended the
Nursery Guides.\2\ Specifically, the Commission amended Guide 6 (Plants
collected from the wild state) and the related definitions. Guide 6 now
advises sellers that it is unfair or deceptive to offer for sale plants
collected from the wild state without disclosing that fact.\3\
Additionally, the Commission amended Guides 1-8 to update legal
terminology. Specifically, the Commission deleted the expressions ``it
is an unfair trade practice'' and ``has the capacity and tendency or
effect of deceiving purchasers,'' neither of which the Commission uses
in its orders, rules, or guides. The Commission substituted the
language ``it is an unfair or deceptive act or practice'' and
``misrepresents directly or by implication.'' \4\
---------------------------------------------------------------------------
\2\ 59 FR 64546 (December 14, 1994).
\3\ Guide 6 also provides that plants propagated from plants
lawfully collected from the wild state may be designated as
``nursery-propagated.''
\4\ See the Commission's 1983 Statement on Deception found in
the appendix to Cliffdale Associates, 103 F.T.C. 110, 174 (1984).
---------------------------------------------------------------------------
On June 13, 2006, the Commission published a Federal Register
notice (``FRN'') seeking comment on the Nursery Guides as part of the
Commission's ongoing project to review periodically its rules and
guides to determine their current effectiveness and impact.\5\ The FRN
sought comment on the continuing need for the Guides; the costs and
benefits of the Guides; how the 1994 amendments to Guide 6 affected the
nursery industry and purchasers; and what effects, if any,
technological or economic changes have had on the Guides.
---------------------------------------------------------------------------
\5\ 71 FR 34045 (June 13, 2006).
---------------------------------------------------------------------------
III. Regulatory Review Comments
The Commission received two comments in response to the FRN,\6\ one
from an individual \7\ and one from the American Nursery & Landscape
Association (``ANLA''). ANLA, a national trade organization formed in
1875, represents nursery and greenhouse crop growers, landscape design
and installation professionals, independent garden retailers,
horticultural distributors, and industry suppliers. ANLA stated that
these entities collectively comprise what is commonly referred to as
the ``green industry,'' which generates annual economic output
estimated at over $147 billion. According to ANLA, the Nursery Guides
cover many of the
[[Page 902]]
activities of its members and the industry.
---------------------------------------------------------------------------
\6\ The comments are cited in this notice by the name of the
commenter. All comments are on the public record and available for
public inspection in the Consumer Response Center, Room 130, Federal
Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC, from
9 a.m. to 5 p.m., Monday through Friday, except Federal holidays.
The comments also are available on the Internet at the Commission's
Web site, http://www.ftc.gov.
\7\ Barb Sachau (``Sachau'').
---------------------------------------------------------------------------
ANLA's comments, which responded to each of the eleven FRN
questions,\8\ indicated that the Nursery Guides serve a useful purpose
and should remain in effect in their current form. ANLA stated that it
did not have any proposals for changing the Guides \9\ and did not have
any ``specific observations'' about what effects, if any, changes in
relevant technology, economic conditions, or environmental conditions
had on the Guides. ANLA observed that the Guides ``have been generally
adopted and become part of routine business practice at least among
legitimate and respectable industry firms'' and that the Nursery Guides
``provide a framework for addressing the bad actors.'' ANLA stated that
its sense was that the Guides have imposed minimal costs on purchasers
because they ``merely convey the performance standards that should be
met'' when the industry engages in advertising and labeling that it
otherwise conducts. Further, ANLA said that it did not believe the
Guides have imposed any significant burdens on industry businesses.
---------------------------------------------------------------------------
\8\ Because ANLA did not provide substantive information in
response to every question and some responses overlapped with
others, this FRN does not discuss each question separately.
\9\ In response to FRN question 9 (whether the Guides overlap or
conflict with other federal, state or local laws or regulations),
ANLA stated that it did not see any fundamental conflict. It
indicated that the nursery industry recently worked with the
National Institutes for Standards and Technology to develop industry
guidelines for marketing plants sold in packages or in containers.
ANLA stated that the ``Industry Guide to Marketing Container
Plants'' (``Industry Guide'') ``was necessitated by the widespread
use of marketing terminology (10-inch pot, 1 gallon pot) that was
viewed as not conforming with weights and measures consumer labeling
requirements.'' ANLA suggested that if the Commission decided to
retain the Nursery Guides, it might want to reference the Industry
Guide because it contains useful supplemental information. ANLA,
however, did not propose any specific text or section of the Guides
for this supplemental information. Because the Industry Guide
addresses matters of state law, as opposed to compliance with the
FTC Act or other laws enforced by the FTC, the Commission believes
that it is potentially confusing to reference the Industry Guide in
the Nursery Guides.
---------------------------------------------------------------------------
Concerning FRN question 5 (how the 1994 amendments to Guide 6
regarding plants collected from the wild state have affected the
nursery industry and purchasers), ANLA stated that the intent of the
1994 amendments--which it supported--was to protect consumers because
wild-collected plants often suffer high mortality. It noted, however,
if wild-collected plants have been established in the nursery for at
least a growing season, the surviving plants regain vigor and thus the
consumer is more assured of purchasing viable plants. ANLA opined that
the Guide 6 ``nursery-propagated'' designation helps conservationists
and consumers interested in preserving these wild populations because
they may want to purchase only truly nursery-propagated and grown
plants.
Sachau's comment related solely to wild-collected plants, and did
not indicate that any changes needed to be made to the Guides. Sachau
stated that no wild-collected plants should be sold by any U.S.
nursery. Sachau indicated that such plants were usually collected on
national taxpayer-owned land, and that taking plants from this land was
``stealing.'' Sachau stated that stealing plants from national land
should be a criminal offense, and suggested specific fines to be
imposed on anyone caught stealing from nationally-owned land. With
regard to Sachau's comments, the Commission notes that Guide 6 refers
only to plants ``lawfully'' collected from the wild state. Moreover, to
the extent that it is not already a crime, the FTC does not have the
authority to make collecting plants from the wild state on national
lands a criminal offense.
In light of the comments received, and in the absence of any
opposition to the Guides, the Commission concludes that there is a
continuing need for the Nursery Guides. The comments provide evidence
that the Guides serve a useful purpose, while imposing minimal costs on
the industry, and the Commission has no evidence to the contrary.
Accordingly, with the exception of correcting the misspelling of the
word ``bulblets'' \10\ in Sec. 18.1(c)(9), the Commission has
determined to retain the Nursery Guides in their current form.
---------------------------------------------------------------------------
\10\ ``Bulblets'' was incorrectly spelled ``bublets.''
---------------------------------------------------------------------------
IV. Conclusion
For the reasons described above, the Commission has determined to
retain the current Nursery Guides.
List of Subjects in 16 CFR Part 18
Advertising, Nursery, Trade practices.
Text of Amendments
0
For the reason set forth in the preamble, 16 CFR part 18 is amended as
follows:
PART 18--GUIDES FOR THE NURSERY INDUSTRY
0
1. Section 18.1 is amended by revising paragraph (c)(9) to read as
follows:
Sec. 18.1 Deception (general).
* * * * *
(c)(9) That bulblets are bulbs.
* * * * *
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. E7-52 Filed 1-8-07; 8:45 am]
BILLING CODE 6750-01-P