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Concurring Statement of Commissioner Christine S. Wilson

Energy Labeling Rule

March 20, 2020

I support the Commission’s decision to issue a Federal Register Notice seeking comment on the 

Energy Labeling Rule. The Notice seeks comment on proposed requirements for the 

EnergyGuide labels for portable air conditioners and proposes conforming amendments to reflect 

upcoming Department of Energy changes to efficiency descriptors for central air conditioners. 

In addition, the Notice seeks comment on the more highly detailed and prescriptive aspects of the 

Rule. In a prior request for comment on this Rule, I questioned whether these prescriptive 

requirements were necessary and encouraged the Commission to rethink its approach to the 

scope and detail of these requirements.1

 I am pleased that the Commission is seeking comment 

on this issue. 

Specifically, this Notice seeks comment on whether a more flexible approach to labeling 

obligations would provide sufficient guidance to businesses while simultaneously fulfilling the 

Commission’s mandate under the statute.2

 The current requirements are highly prescriptive. For 

example, the Rule specifies the trim size dimensions for labels, including the precise width and 

length (e.g. width 5 1⁄4 to 5 1⁄2 inches (13.34 cm. to 13.97 cm.)); the number of picas for the copy 

set (between 27 and 29); the type style and setting; the weight of the paper stock on which the 

labels are printed (not less than 58 pounds per 500 sheets (25” x 38”) or equivalent); and a 

suggested minimum peel adhesive capacity of 12 ounces per square inch. These highly 

prescriptive requirements depart significantly from the approach employed by other Commission 

Rules and Guides that contain labeling requirements. For example, the Rules and Regulations 

Under the Textile Fiber Products Identification Act provide simply that the “label shall be 

conspicuous and shall be of such durability as to remain attached to the product and its package 

throughout any distribution, sale, resale and until sold and delivered to the ultimate consumer.”3

 

The Commission’s Guides for Select Leather and Imitation Leather Products similarly require 

that the label “should be affixed so as to remain on or attached to the product until received by 

the consumer purchaser.”4

While I have great faith in markets to produce the best results for consumers, the prerequisite of 

healthy competition are sometimes absent. In limited situations, regulations can help address 

market failures. But for regulations to succeed in restoring market forces, they must eliminate 

the market failure in the most narrow and targeted manner possible. Regulatory “fixes” that 

extend beyond simply correcting the problem may upset the balance of forces in the rest of the 

market and, ultimately, may harm consumers.

5

 That is why I share the President’s goal of 

eliminating unnecessary and burdensome regulatory requirements.6 

 1 See Dissenting Statement of Commissioner Christine S. Wilson on the Notice of Proposed Rulemaking: Energy 

Labeling Rule (Dec. 10, 2018), https://www.ftc.gov/public-statements/2018/12/dissenting-statement-commissionerchristine-s-wilson-notice-proposed. 2 Energy Policy and Conservation Act, 42 U.S.C. 6295.

3 16 C.F.R. Part 303.15.

4 16 C.F.R. Part 24.2(g).

5 See, e.g., Howard Beales et al., The Regulatory Transparency Project of the Federalist Society, The Proper Role of 

Rules in a Gloriously Unruly Economy, Aug. 28, 2019, https://regproject.org/wp-
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The Trump administration has called for agencies to carefully review regulations. I am proud 

that the FTC has had a long tradition of proactively reviewing our rules to ensure our regulatory 

program protects consumers while seeking to avoid the unnecessary imposition of costs on 

businesses. 7

 In the last few years, the FTC has repealed or streamlined significantly a number of 

Rules and Guides. For example, the FTC recently repealed the Picture Tube Rule, which the 

Commission determined was no longer necessary to prevent deceptive claims regarding the size 

of television screens.8 The FTC also revised the Jewelry Guides, removing outdated provisions 

as well as lifting restrictions on the marketing of gold-content products.9 Just last year, the FTC 

rescinded the Nursery Guides, rules governing the sale of outdoor plants, because they had 

outlived their utility for consumers and industry.10 

I applaud the FTC’s regular, systematic review of all of its rules and guides on a rotating basis. 

When the Commission conducts a review of a Rule or Guide, we regularly ask if the regulation is 

still necessary. We ask about the costs and benefits to businesses and consumers; conflicts with 

state, local, federal or international laws; whether consumer perceptions have changed; and the 

effect, if any, that changes in relevant technological, economic or environmental conditions have 

had on Rules and Guides. This process lends transparency to the Commission’s regulatory 

review. The Commission is receptive and responsive to the comments, often making regulatory 

revisions to address changing market forces.

Freeing businesses from unnecessarily prescriptive requirements benefits consumers. Although 

the Commission long ago abandoned some of the most egregious instances of invasive 

regulatory zeal that earned it the sobriquet of the “second most powerful legislature in 

Washington,”11 forswearing new mistakes is not enough. Accordingly, I am pleased to see the 

Agency reviewing the more prescriptive aspects of this Rule and am committed to an ongoing 

practice of identifying opportunities to streamline our regulations by updating, modifying, or 

eliminating outdated, burdensome, or unnecessary provisions.

 

content/uploads/RegulatoryProcess-The-Role-of-Rules.pdf (discussing large an unintended consequences of 

burdensome regluations). 

6 Executive Order 13,771, 82 Fed. Reg. 9339 (Feb. 3, 2017) (imposing a rule that for every new regulation created, 

two must be eliminated).

7 In the 1990s, the Commission rescinded 24 Guides (addressing, e.g., fallout shelters, the decorative wall paneling 

industry, and the dog and cat food industry) and 13 trade rules, including those concerning the misuse of 

“automatic” or terms of similar import as descriptive of household electric sewing machines; deceptive advertising 

and labeling as to size of tablecloths and related products; and the Frosted Cocktail Glass Rule.

8 https://www.govinfo.gov/content/pkg/FR-2018-10-09/pdf/2018-21803.pdf 9

 

https://www.ftc.gov/system/files/documents/public_statements/1393857/g71001_jewelry_guides_statement_of_basi

s_and_purpose_final_8-8-18.pdf. 10 https://www.ftc.gov/news-events/press-releases/2019/06/ftc-approves-proposal-rescinding-nursery-guides 11 See, e.g., J. Howard Beales III & Timothy J. Muris, FTC Consumer Protection at 100: 1970s Redux or Protecting 

Markets to Protect Consumers?, 83 Geo. Wash. L. Rev. 2157, 2159 (2015) (quoting Jean Carper, The Backlash at 

the FTC, Wash. Post, Feb. 6, 1977, at C1).