Bureau of Consumer Protection 

Division of Enforcement 

Hampton Newsome 

Direct Dial: (202) 326-2889 

Fax: (202) 326-2558 

Email: hnewsome@ftc.gov 

Matt Sigler 

Technical Director 

UNITED STATES OF AMERICA_ 

FEDERAL TRADE COMMISSION 

WASHINGTON, D.C. 20580 

April28, 2014 

Plumbing Manufacturers International 

1921 Rohlwing Road- Unit G 

Rolling Meadows, IL 60008 

Dear Mr. Sigler: 

Department of Energy (DOE) staff has informed Plumbing Manufacturers International's 

(PMI's) concerns about water use representations for dual-flush water closets. Specifically, you 

have raised questions about whether manufacturers may make dual-flush volume disclosures not 

specifically generated by DOE's test procedure. As discussed below, in the FTC staffs view, 

manufacturers may provide such information as long as the representations are not deceptive and 

otherwise comply with the provisions of the Energy Policy and Conservation Act (EPCA). 

Background 

Dual-flush water closets have two water use settings: a "full-flush mode" and a "reduced 

flush mode." Like other plumbing products, these products must meet DOE's water 

conservations standards (10 CFR 430.32(q)) (e.g., 1.6 gallons::-per-flush in full-flush mode). To 

demonstrate compliance, manufacturers must test their models pursuant to DOE's test 

procedures (1 0 CFR Part 430, subpart B, appendix T). For dual-flush water closets, these 

procedures provide a method for manufacturers to measure both full-flush and reduced-flush 

volumes "in accordance with the test requirements specified in section 7 .4, Water Consumption 

Test, of ASME A112.19.2-2008." 

In the marketplace, manufacturers and other sellers routinely describe the performance of 

their dual-flush models using a weighted average (i.e., one full and two reduced flushes). The 

DOE test procedure makes no mention of this weighted average disclosure. However, various 

state and federal agencies (e.g., the Environmental Protection Agency's Water Sense Program 

and the State of California) use this formula as the primary tool for demonstrating compliance 

with their water efficiency programs. In addition, voluntary consensus standards adopted by the 

plumbingindustry (see section 7.4 of ASME A112.19.2) use the same formula. For several 

years, manufacturers have disclosed the weighted average on specification sheets, packaging, 

installation guides, use and care manuals, packaging, tip sheets, websites, and other media for 
Page 2 

dual-flush water closets. 

Representations under EPCA 

Under EPCA (42 U.S.C. 6293(c)), manufacturers cannot make water use claims for a 

product covered by DOE's standards and test procedures "unless such pr~duct has been tested in 

accordance with such test procedure and such representation fairly discloses the results of such 

testing." A violation of this restriction constitutes an "unfair or deceptive act or practice" under 

the Federal Trade Commission Act ("FTC Act"). 1 In essence, this requirement promotes 

uniformity in water use claims and helps consumers make meaningful comparisons of competing 

plumbing products.2 However, EPCA does not prohibit marketers from disseminating truthful, 

substantiated water information derived from sources other than the DOE tests if that 

information is not otherwise unfair or deceptive. 

Representations for Dual-Flush Water Closets 

Although not established by the DOE test, truthful weighted dual-flush ratings can 

provide useful information for consumers and others. Indeed, as noted above, certain state and 

federal agencies use this information for their programs. Without evidence that weighted dualflush ratings are categorically unfair or deceptive, FTC staff believes that there is no basis for a 

blanket prohibition against disclosing these averages. 

Although the use of weighted dual-flush ratings generally is permissible, manufacturers 

and other marketers should exercise care in how they explain and disseminate these ratings to 

avoid deception. If marketers fail to adequately explain these ratings, they risk blurring the 

distinction between the dual-flush average rating (e.g., "average 1.28 gpf') and the maximum 

flush volume generated by the DOE requirements (e.g., "1.6 gpf'). In addition, in the absence of 

adequate explanation of the weighted dual-flush rating, consumers may not understand that the 

average is weighted toward lower flush volume. Accordingly, FTC staff recommends that, if 

marketers choose to disclose weighted average flush volumes, they should consider providing 

clear and conspicuous disclosures to avoid possible deception.3 However, without information 

about how consumers interpret ave~age flush volume claims, FTC staff cannot provide any more 

specific guidance on the content of such disclosures. 

* * * * * 

1 See 42 U.S.C. § 6293(c) (EPCA) and 15 U.S.C. § 45(a)(l) (Section 5 ofthe FTC Act). Section 

5 of the FTC Act generally prohibits false and misleading statements made in advertising and 

other representations. 

2 The scope of representations covered by EPCA Section 6293( c) is broad. In the staffs view, 

the provision covers not only representations made in conventional advertising but also 

information provided in directories, reports, catalogs, and other publications not necessarily 

intended for end-use consumers. Because EPCA covers any water-related representations, the 

coverage of this section is not dependent on whether representations are made directly to 

''consumers.'' 

3 For ratings marked on the products themselves, manufacturers should also consider whether 

enough space exists to adequately explain average flush volume disclosures. 
Page 3 

The views expressed in this letter are those of FTC staff assigned to enforce the 

Commission's Energy Labeling Rule (16 C.F.R. Part 305). In accordance with Section 1.3(c) of 

the Commission's Rules of Practice and Procedure, 16 CFR § 1.3(c), this is a staff opinion only 

and has not been reviewed or approved by the Commission or by any individual Commissioner. 

The advice provided in this letter is not binding upon the Commission and is given without 

prejudice to the right of the Commission later to rescind the advice and, when appropriate, to 

commence an enforcement proceeding. In conformance with Section 1.4 of the Commission's 

Rules of Practice, 16 CFR § 1.4, this letter is being placed on the public record. If you have any 

further questions, please contact me at (202) 326-2889.