UNITED STATES OF AMERICA 


FEDERAL TRADE COMMISSION 


WASHINGTON, D.C. 20580 


Bureau of Consumer Protection 

Division of Enforcement 

October 13, 2016 

Jennifer Cleary 

Director, Regulatory Affairs 

Association ofHome Appliance Manufacturers (AHAM) 


111191h Street, NW, Suite 402 


Washington, DC 20036 

Dear Ms. Cleary: 

This letter responds to the Association ofHome Appliance Manufacturers' (AHAM's) 

request for guidance about the timing of energy-related representations generated by a new 

Department ofEnergy (DOE) test procedure for portable air conditioners (PACs). As discussed 

below, given the burdens and complications associated with testing and labeling PACs in the 

middle ofthe current "cooling season" (i.e., the annual marketing cycle for these products), we 

would not recommend enforcement action if manufacturers begin using the new test for energy 

representations in the next season (i.e., October 1, 2017). 

On June 1, 2016, DOE published a final PAC test procedure in the Federal Register (81 

Fed. Reg. 35242). In its Notice, DOE indicated that the "final rule changes will be mandatory 

for representations of energy use or efficiency on or after November 28, 2016." This 

requirement stems from a statutory provision requiring that all energy representations made 180 

days after a new DOE test fairly disclose the new test results (42 U.S.C. 6293(c)(2)). Under the 

statute, FTC has authority to enforce this provision (42 U.S.C. 6303(c)). In a letter to DOE staff, 

AHAM asked that manufacturers be allowed to begin using the new DOE test results on October 

1, 2017, given the burdens associated with earlier compliance. AHAM has forwarded its request 

to FTC given this agency's authority over claims made pursuant to the test procedure. 

Currently, FTC has no labeling requirements nor does DOE have energy efficiency 

standards for PACs. 1 Accordingly, any energy representations for such products are voluntary. 

Nevertheless, cooling capacity (in BTUs), an energy-related descriptor derived from the DOE 

test, routinely appears on packages and other marketing material to communicate the 

appropriately-sized product to meet consumers' needs. According to AHAM's letter to DOE 

staff, the new DOE test procedure yields significantly lower cooling capacity ratings compared 

to those appearing in the market today. Thus, the new DOE test procedure has an immediate 

1 FTC is currently considering energy labeling for PACs. 81 Fed. Reg. 62681(Sept.12, 2016). In addition, DOE 

has sought comments on proposed conservation standards. 81 Fed. Reg. 53961 (Aug. 15, 20 16). 
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impact on capacity disclosures, even though there are no mandatory energy-efficiency 

disclosures for PACs. 

AHAM further explains that the testing compliance date is difficult, burdensome, and 

disruptive to manufacturers because it falls in the middle ofthe 2017 cooling season. According 

to AHAM, companies are currently producing models for the 2017 cooling season. 

Manufacturers have nearly (or already) completed product artwork, including the box, in-box 

materials, and user guides for such models. In addition, .they have already designed and 

completed product testing using the current test for models slated to be sold in the 2017 season. 

Retailers have chosen the products they plan to sell based on cooling capacities generated under 

those tests. AHAM explains that re-testing now will result in stranded investments and 

additional costs for manufacturers. In addition, conducting timely new tests for all ofthese 

models will be nearly impossible, especially given difficulties in finding third-party labs 

equipped to do the test and limited in-house lab resources. To ensure accurate claims, AHAM 

argues that manufacturers need additional time to more fully understand the test procedure and to 

test multiple units. 

AHAM believes the burden ofthis testing deadline is not balanced by any benefit to 

consumers or the environment. Testing and re-labeling in this production cycle will not lead to 

any new energy-saving product designs because manufacturers have not had time to redesign 

products. AHAM also argues a transition to the new cooling capacities in the middle ofthe 

cooling season will lead to consumer confusion. In light ofthese concerns, AHAM has 

requested that FTC exercise enforcement discretion to ensure a uniform development and 

production timeline for PACs in response to the new test. Specifically, it recommends allowing 

manufacturers to begin using the new test procedure with the next cooling season on October 1, 

2017. 

The FTC staff finds these arguments compelling. Therefore, given the burden and 

disruption associated with implementing the new test in the middle of the 2017 cooling season, 

staff would not recommend enforcement action related to energy representations under the new 

DOE test procedure before the next cooling season (i.e., October 1, 2017).2 To encourage 

uniformity in representations for consumers, our guidance here applies to all affected industry 

members, not just AHAM members. Cooling capacity is a principal metric used by consumers 

in shopping for these products. Accordingly, uniformity in these disclosures is particularly 

important in this context to minimize any confusion resulting from these regulatory changes. 

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

Commission's Energy Labeling Rule (16 C.F.R. Part 305). In accordance with Section l.3(c) of 

the Commission's Rules ofPractice and Procedure, 16 C.F.R. § l.3(c), this is a staff opinion only 

and has not been 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 ofthe Commission later to rescind the advice and, when appropriate, to commence an 

enforcement proceeding. In conformance with Section 1.4 ofthe Commission's Rules of 

2 The Commission has considered similar issues in the past. For example, the Commission weighed the impact of 

labeling changes on products involving annual production cycles in extending the effective date for light bulb labels. 

See, e.g., 76 Fed. Reg. 20233 (April 12, 2011) (extension of effective date for light bulb package labels). 
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Practice, 16 C.F .R. § 1.4, this letter is being placed on the public record. Ifyou have any further 

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

Hampton Newsome 

Attorney