[Federal Register Volume 72, Number 5 (Tuesday, January 9, 2007)]
[Rules and Regulations]
[Pages 901-902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-52]


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FEDERAL TRADE COMMISSION

16 CFR Part 18


Guides for the Nursery Industry

AGENCY: Federal Trade Commission.

ACTION: Confirmation of guides.

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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: 
<a href="/cdn-cgi/l/email-protection#abc1cdd9cac5c0c7ceebcddfc885ccc4dd"><span class="__cf_email__" data-cfemail="6d070b1f0c030601082d0b190e430a021b">[email protected]</span></a>.

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.
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    \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.
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    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\
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    \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).
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    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.
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    \5\ 71 FR 34045 (June 13, 2006).
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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.
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    \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'').
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    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.
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    \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.
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    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.
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    \10\ ``Bulblets'' was incorrectly spelled ``bublets.''
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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


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