UNITED STATES OF AMERICA

PEDERAL TRADE COMMISSION

WASHINGTON, D.C. 20580

Division of Enforcement

Bureau of Consumer Protection

December 8, 2008

Michael H. Bai, Esq.

Littleton Joyce Ughetta Park & Kelly LLP

39 Broadway, 34th Ploor

New York, NY 10006

Dear Mr. Bai:

Thank you for your letter to the Commission, dated October 10, 2008, requesting our

advice and interpretation concerning use ofthe term "Lyocell" on tires pursuant to 16 C.F.R. §

303. As you requested during a telephone conversation with my staff on December 3,2008, we

are treating your letter as a request for a staff advisory opinion. This letter is a formal response

to your request, memorializing the email response provided by Steve Ecklund on November 12,

2008.

Tires are not subject to the Textile Fiber Products Identification Act and, therefore, the

FTC list of generic fiber nan1es set forth at 16 C.P.R. § 303.7 does not apply. However, any

marketing is stilI subject to Section 5 ofthe FTC Act, 15 U.S.C. § 45, which forbids deceptive

and tmfair practices in or affecting commerce. I suggest that you carefully review the following

two Policy Statements in tIus regard:

http://\V\vw.ftc.govlbcp/policvstmt/ad-decept.htm

http://www.ftc.govlbcp/gllides/ad3subst.htm

If a company makes a claim about its product (such as that it contains LyoceIl), the claim

should not be "deceptive" and the company should have reasonable "substantiation" for that

claim. We are not textile chemists and we do not test products for their fiber content unless we

do so as part of an official law enforcement action - and then we would contract with a private

lab to conduct the actual testing.! Therefore, we decline to render an opinion regarding whether

a representation that your tires contain Lyocell would comply witI1 Section 5 ofthe FTC Act.

In accordance with Section 1.3(c) ofthe Commission's Rules ofPractice and Procedure,

16 C.F.R. § 1.3(c), this informal staff opinion has not been reviewed or approved by the

I In accordance with Section 1.1 oftl1e Commission's Rules ofPractice and Procedure,

16 C.F.R. § 1.1, we do not ordinarily provide an opinion if an infoDned opinion Call110t be made

or could be made only after extensive investigation, clilucal study, testing, or collateral inquiry.
Commission or by an individual Commissioner, and is given without prejudice to the right ofthe

.Commission later to rescind the advice and, where appropriate, to commence a law enforcement

action. In addition, this office retains the right to reconsider its advice, and with notice to the

requesting patiy, rescind or revoke its opinion ifthe response is used for improper purposes, or if

it would be in the public interest to do so.

Pursuant to Section 1.4 ofthe Commission's Rules ofPractice and Procedure, 16 C.F.R.

§ 1.4, this response along with your request for advice will be placed on the public record,

subject to any limitations on public disclosure arising from statutory restrictions, the

Commission's rules, atld the public interest. Hopefully, the preceding has been helpful.

Jatn A. KOlA lvi.-/

Associate Director

Division ofEnfocement

2
LITTLETON JOYCE

UGHETTA PARK & KELLY LLP

NEW YORK CITY I PURCHASE, NY I R'ED BANK. NJ

Direct Dial: (212)404-5775

E-Mail:"michael.bai@littletolljoyce.com

October 10, 2008

VIA FEDERAL EXPRESS

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

Attention: Secretary ofthe Commission

39 Broadway

34th Floor

New York. NYroo06

Tel (212) 404-5777

Fax (212) 232-0088

www.litllelonjt?J1ce.com

Re: Use ofthe Term "Lyocell" on Tires Pursuant to 16 CFR §303.7(d)

Dear Secretary ofthe Commission:

The undersigned has been retaioed by Hyosung Corporation (''Hyosung'') to obtain the

Federal Trade Commission's ("FTC") advice/interpretation concerning whether, pursuant to 16

CFR §303.7(d), Hyosung and its customers, specifically Kurnho Tire Co., Inc. ("Kurnho Tire"),

may use the term "Lyocell" on the tire's sidewall to describe the fibers in the tire's cord

materials.

We have received the attached letter (Exhibit "A") from the Chief Counsel for the

National Highway Traffic Safety Administration ("NHTSA") in response to our request for

interpretation on behalf ofKurnho Tire Co., Inc. (Exhibit "B"). NHTSA's ChiefCounsel states

that pursuant to 49 CFR § 571.139 paragraph S5.5(e), Kurnho Tire may use the FTC-established

generic tenn "Lyocell" on the tire's sidewall to describe the fibers in the tire's cord materials.

However, NHTSA's Chief Counsel informed us that its answer was conditioned upon FTC

concurrence that the generic name "Lyocell" is properly applicable to Kurnho Tire's tire fiber

cord material.

We have attached Hyosung's formula fur the "Lyocell" material that is in the tire's cord

material (Exhibit "C"). Since the formula meets the definition for "Lyocell" pursuant to 16 CFR

§303.7(d), please confirm that Hyosung's customers, namely Kurnho Tire, may use the term

"Lyocell" on the tire's sidewall in tires that use "Lyocell" cord material.
Use ofthe Tenn ''Lyocell'' on Tires Pursuant to 16 CFR §303.7(d)

Page 2

If you have any questions, please do not hesitate to contact me at 212-404-5775. Ifany

additional information is necessary, please advise me. Thank you for your attention to this

matter.

Very truly yours,

LITTLETON JOYCE UGHET A PARK & KELLY LLP

. Bai

Enclosures: Exhibit "A"

Exhibit "B"

Exhibit "c"

August 25, 2008 Letter from NHTSA

April 2, 2008 Letter to NHTSA

Hyosuog Corporation's Lyocell FonnuIa

LITTLETON JOYCE UGHETTA PARK & KELLY LLP
U.S. Department

ofTransportatlon

National Highway

Traffic Salety

Administration

Mr. Michael H. Bai

Littleton Joyce Ughetta Park & Kelly LLP

39 Broadway

34th Floor

New York, NY 10006

Dear Mr. Bai:

AUG 2 5 >~U

1200 New Jersey Avenue SE.

WashIngton, DC 20590

This responds to your letter requesting an interpretation ofone ofthe labeling

requirements ofFederal Motor Vehicle Safety Standard (FMVSS) No: 139, New

pneumatic radial tires for light vehicles. You ask whether, ifyour client Kumho Tires

incorporates "lyocell" fibers in the cord materials for the tire's plies, it would be

permissible under S5.5(e) ofFMVSS No. 139 to label the tire sidewall with either

"lyocell" or "rayon."

Our answer is a qualified yes, We have made a few assumptions'i'!J answering yoUr letter.

First, we assume that the cord material in question is in fact lyocell and that you simply

ask ifreference to "Iyocell" or "rayon" may be used to describe the material. Second,

you state that under Federal Trade Commission (FTC) regulations, "Iyocell" and "rayon"

are generic names for lyacell; for the purposes ofthis letter, we assume your

understanding is correct. However, for a complete answer to your question, you should

contact the FTC to obtain its concurrence that you have correctly understood the FTC

regulation.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is

authorized to issue FMVSSs that set performance requirements for new motor vehicles

and items ofmotor vehicle equipment (see 49 U.S.C, Chapter 301). NHTSA does not

provide approvals ofmotor vehicles or motor vehicle equipment. Instead, manufacturers

are required to self-certify that their products conform to all applicable safety standards

that are in effect on the date ofmanufacture. NHTSA selects a sampling ofnew vehicles

and equipment each year to detennine their compliance with applicable FMVSSs. If our

testing or examination reveals an apparent noncompliance, we may require the

manufacturer to reniedy the noncompliance, and may initiate an enforcement proceeding

ifnecessary to ensure that tile manufacturer takes appropriate action.

*****

NHTSA
2

Paragraph S5.5 ofFMVSS No. 139 specifies tire markings for new pneumatic radial tires

for use on motor vehicles (other than motorcycles and low speed vehicles) that have a

gross vehicle weight rating (OVWR) of 10,000 pounds or less. Among the information

required by S5.5 to be marked on the tire sidewall, S5.5(e) requires "The generic name of

each cord material used in the plies (both sidewall and tread area) ofthe tire." NHTSA

requires this information to help tire purchasers select the characteristics they want in a

given tire, because the many different cord materials that exist and their many different

characteristics enable a tire to be specially geared to its anticipated use.

Your letter states that FTC regulations (16 CFR § 303.7(d)) permit the use ofthe generic

name "lyocell" or "rayon" where the fabric used is "Iyocell." NHTSA has previously

favorably cited FTC-established generic names for cord materials. In a January 20, 1976

letter ofinterpretation, NHTSA advised that ifKevlar was used as a cord material in a

tire; it must be identified by its generic name, which, NHTSA stated, the FTC established

as "Aramid" pursuant to the Textile Fiber Product Identification Act.

Assuming you are correct that the FTC has established that lyoceJl fibers may be

identified by either the generic name "Iyocell" or the generic name "rayon," and because

we have previously accepted FTC-established generic names for tire cord material

labeling required by the FMVSSs, in our opinion using either "lyocell" or "rayon" as the

generic name for lyocell tire cords would be acceptable under FMVSS No. 139.

However, our answer is conditional on FTC concurrence that the genetic names "lyoceJl"

and "rayon" are properly applicable to your client's tire cord material. We suggest that

you follow up with the FTC on this matter.

I hope this information is helpful. If you have any further questions, please do not

hesitate to contact Rebecca Schade ofmy staff at (202) 366-2992.

Sincerely yours,

\(--Anthony M. Cooke

ChiefCounsel
LITTLETON JOyeE

UGHETTA PARK & KELLY LLP

NEW YORK CITY I PURCHASE, NY I RED BANK, NJ

Direct Dial: (212) 404·5775

E-Mail: michael.hai@littletonjoyce.com

April 2, 2008

VIA FACSIMILE AND REGULAR MAIL

The ChiefCounsel

National Highway Traffic Safety Administration, NCC-Ol

400 7th Street, SW

Washington, D.C. 20590

39 Broadway

34th floor

New York. NY 10006

Tel (212) 404-5777

Fax (212) 232-0088

www.littletonjl2Jce.com

Re: Request for Interpretation of 49 CFR §571.139 Concerning the Use of the

Generic Name "Lyocell" or "Rayon"

Dear ChiefCounsel:

The undersigned serves as counsel for Kumho Tire Co., Inc. ("Kumho Tires"). Pursuant

to 49 CFR § 571.139 paragraph S5.5(e), ifKumho Tires incorporates "lyocell" fibers in the cord

materials for the tire's plies, may Kumho Tires place either the generic name "lyocell" or

"rayon" on the tire's sidewall?

Under 49 CFR § 571.139 paragraph S5.5(e), Kumho Tires must identify the generic name

of each cord material used in the tire's plies on the tire's sidewall. I Pursuant to 16 CFR

§303.7(d), the Federal Trade Commission ("FTC") allows for a manufacturer to use the term

"lyocelJ" or "rayon" as a generic name for manufactured lyocelJ fibers.2

1 49 CFR § 571.139; New pneumatic tires for light vehicles.

35.5 Tire markings. Except as specified in paragraphs Ca) through Ci) of S5.5. each tire must be marked on each sidewall

with the information specified in S5.5(.) through (d) and on one sidewall with the information specified in S5.5(0) through (i)

according to the phase~in schedule specified in 87 of this standard. The markings must be placed between the maximum section

width and the bead on at least one sidewall. unless the maximum section width of the tire is located in an area that is not more

than one-fourth of the distance from the bead to the shoulder of the tire. If the maximum section width tails within that area,

those markings must appear between the bead and a point one-half the distance from the bead to the shoulder of the tire. on at

least one sidewall. The markings must be in letters and numerals not less than 0.078 inches high and raised above or sunk below

the tire surface not less than 0.015 inches.

(c) The generic name oreach cord materia) used in the plies (both sidewall and tread area) ofthe tire;

1 16 CFR § 303.7 Generic names and definitions for manufactured fibers.
Letter to NHTSA re: Request for Interpretation of49 CFR §571.139 Concerning the Use ofthe

Generic Name "Lyocell" or "Rayon"

April 2, 2008

Page 2

According to the above-referenced regulations, the FTC permits the use of the genetic

name "lyocell" or "rayon" where the fabric used is "lyocell". However, NHTSA regulations

concerning tire labeling are silent on the "generic name of each cord material" tlJat may be used.

Therefore, we request clarification and confmnation that Kumho Tires may label its tires as

either "lyocell" or "rayon" as long as the tire cord matetials are manufactured using "lyocell."

If NHTSA respond by requiring Kumho Tires to label the tires as "lyocell", we would

appreciate it ifNHTSA could provide us with the regulation suppOliing NHTSA's conclusion.

Thank you for your attention and assistance in this matter. Your earliest reply would be

greatly appreciated. Please do not hesitate to contact the undersigned ifyou have questions.

Very truly yours,

LITTLETON JOYCE UGHETTA PARK & KELLY LLP

•

Michael H. Bai

Pursuant to the provisions of section 7(c) of the Act, the Commission hereby establishes the generic names for manufactured

fibers, together with their respective definitions, set forth in this section, and the generic names for manufactured fibers, together

with their respective definitions, set forth in international Organization for Standardization ISO 2076: 1999(E), "Textiles-Manmade fibres~~Generic names. tl This incorporation by reference was approved by the Director of the Federal Register in

accordance with 5 U.S.C. 552(a) and I CFR part 51. Copies may he ohtained from ti,e American National Standards Institute, II

West 42nd St., 13th floor, New York, NY 10036. Copies may be inspected at the Federal Trade Commission, Room 130,600

Pennsylvania Avenue, NW., Washington, DC 20580, or at the National Archives and Records Administration (NARA). For

information on the availability of this material at NARA, cail 202-741-6030, or go to: http://www.archives.gov/federalregistcr/code--of--federal-regulations/ibr-Iocations.html.

(d) Rayon-A manufactured fiber composed of regenerated cellulose, as well as manufactured fibers composed of regenerated

cellulose in which substituents have replaced not more than 15% of the hydrogens of the hydroxyl groups. Where the fiber is

composed ofceltulose precipitated from an organic solution in which no substitution orihe hydroxyl groups takes place

and no chemical intermediatesnre formed. the term Ivocell may be used as a generic description of the fiber.

LITTLETON JOYCE UCHETTA PARK & KELLY LLP
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