[Federal Register Volume 83, Number 175 (Monday, September 10, 2018)]
[Proposed Rules]
[Pages 45582-45584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19227]


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FEDERAL TRADE COMMISSION

16 CFR Part 18


Rescission of Guides for the Nursery Industry

AGENCY: Federal Trade Commission.

ACTION: Proposed rule; rescission of Guides and removal of Guides from 
the CFR.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission''), 
following its initial review of the Guides for the Nursery Industry 
(``Nursery Guides'' or ``Guides''), proposes to rescind the Guides and 
remove them from the Code of Federal Regulations.

DATES: Written comments must be received on or before November 5, 2018.

ADDRESSES: Interested parties may file a comment online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``Nursery Guides (Matter 
No. P994248)'' on your comment, and file your comment online at https://ftcpublic.commentworks.com/ftc/nurseryguides, by following the 
instructions on the web-based form. If you prefer to file your comment 
on paper, mail your comment to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite 
CC-5610 (Annex A), Washington, DC 20580, or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610, 
Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Hampton Newsome, (202) 326-2889, 
Attorney, Division of Enforcement, Bureau of Consumer Protection, 
Federal Trade Commission, Room CC-9541, 600 Pennsylvania Avenue NW, 
Washington, DC 20580.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Commission issued the Guides for the Nursery Industry in 
1979.\1\ These Guides address various sales claims for outdoor plants, 
including representations regarding quantity, size, grade, kind, 
species, age, maturity, condition, vigor, hardiness, growth ability, 
price, and origin or place where grown. The Commission amended the 
Guides in 1994 to update legal terminology, and again in 2007 to make a 
technical correction.\2\
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    \1\ The Commission issued the Guides in 1979 (44 FR 11176 (Feb. 
27, 1979)) to replace trade practice rules for the nursery industry 
(16 CFR part 34) first promulgated in the 1950's (23 FR 4803 (June 
28, 1958)). The Guides help marketers avoid making claims that are 
unfair or deceptive under Section 5 of the FTC Act, 15 U.S.C. 45. 
Industry guides, such as the Nursery Guides, are administrative 
interpretations of laws administered by the Commission. They do not 
have the force of law and are not independently enforceable. Failure 
to follow industry guides may result, however, in enforcement action 
under the FTC Act, 15 U.S.C. 45. In any such action, the Commission 
must prove that the act or practice at issue is unfair or deceptive 
in violation of Section 5 of the FTC Act.
    \2\ See 59 FR 64546 (Dec. 14, 1994); 72 FR 901 (Jan. 9, 2007).
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    The Commission reviews its rules and guides periodically to seek 
information about their costs and benefits to consumers and businesses, 
regulatory and economic impact, and general effectiveness in protecting 
consumers and helping industry avoid deceptive claims. These reviews 
assist the Commission in identifying rules and guides that may warrant 
modification or rescission.
    On February 22, 2018, the Commission initiated its scheduled 
regulatory review of the Guides and solicited public comment on several 
issues.\3\ Specifically, the Commission sought input on, among other 
things, the continuing need for the Guides; their economic impact; 
possible conflict between the Guides and state, local, federal, or 
international laws; and the effect of any technological, economic, 
environmental, or other industry changes. The Commission also solicited 
comment on issues specific to the Guides, such as whether the 
Commission should update plant name classification references. The 
Commission received one comment, discussed below.
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    \3\ See 83 FR 7643 (Feb. 22, 2018).

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[[Page 45583]]

II. Comment Received

    The sole commenter, the National Federation of Independent Business 
(``NFIB''), urged the Commission to rescind the Guides as an 
unnecessary federal regulatory burden. NFIB asserted that most nursery 
businesses are small businesses and ``a significant portion of the 
industry is predominantly intrastate rather than interstate in 
practical character.'' Therefore, they contend that regulation or 
guidance concerning the nursery business is more properly conducted at 
the state, rather than federal, level. NFIB, however, did not address 
any of the Commission's specific questions.

III. Proposed Rescission of the Guides

    The Commission proposes to rescind the Guides because, as discussed 
below, they no longer appear necessary, and thus serve little purpose 
to industry or consumers. In proposing this approach, the Commission 
has considered the prevalence of practices covered by the Guides, 
industry use of the Guides, and the Commission's ability to address 
deceptive practices through enforcement actions or issuance of other 
educational materials in the Guides' absence.
    First, the types of practices detailed in the Guides do not appear 
to be prevalent in the nursery industry. The Guides focus on 
misrepresentations about species, size, rate of growth, and other plant 
characteristics. Recent FTC complaints related to nurseries and outdoor 
plant sales, however, suggest that current consumer concerns have 
little to do with these types of practices. Indeed, nearly all recent 
complaints received by the Commission regarding plant sales involve 
online plant orders that were either dormant or dead upon arrival, 
incomplete, not delivered in the time promised (or at all), or not 
refunded upon request.\4\
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    \4\ The Guides address some of the practices identified in the 
complaints indirectly or in limited ways. For instance, Sec.  
18.1(c)(2) states it is deceptive to represent ``[t]hat industry 
products are healthy . . . when such is not the fact.'' In addition, 
some complaints involve incorrect orders, which are covered by Sec.  
18.1(a). However, the Commission sees no need to maintain the Guides 
simply to preserve such limited, self-evident guidance.
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    Furthermore, the Commission lacks evidence that industry members 
currently use the Guides to help avoid deceptive practices. For 
example, FTC staff found no mention of the Guides on websites for 
industry associations, nurseries, or other industry entities. 
Additionally, the Commission is unaware of any unique, pervasive 
consumer protection issues currently associated with the advertising or 
labeling of outdoor plants. The sole comment submitted to the 
Commission argued that there was no continuing need for special 
guidance in the nursery industry. The absence of comments from nursery-
related entities in response to the February 2018 notice reinforces the 
conclusion that the Guides have limited utility or significance to the 
industry in today's market.
    Finally, the Guides' rescission will have no impact on the FTC's 
ability to address unfair and deceptive practices in the nursery 
industry. If the Commission determines that certain practices in the 
sale of outdoor plants are materially misleading, it can address such 
practices through enforcement actions under Section 5 of the FTC 
Act.\5\ Should industry members desire continued guidance, FTC staff 
can provide informal guidance through business education materials 
(e.g., FAQ's) posted on the Commission's website.
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    \5\ Section 5 of the FTC Act, 15 U.S.C. Section 45(a)(1), 
prohibits unfair or deceptive acts or practices in or affecting 
commerce.
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IV. Request for Comment

    The Commission seeks comments on all aspects of the proposed 
rescission. Among other things, commenters should address any 
continuing need for the Guides, the impacts of their rescission on 
industry members and consumers, and other measures the Commission 
should consider in their place (e.g., business education materials).
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before November 5, 
2018. Write ``Nursery Guides (Matter No. P994248)'' on your comment. 
Your comment--including your name and your state--will be placed on the 
public record of this proceeding, including, to the extent practicable, 
on the public FTC website, at https://www.ftc.gov/policy/public-comments.
    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/nurseryguides, by following the instruction on the web-based form. 
If this Notice appears at http://www.regulations.gov, you also may file 
a comment through that website.
    If you file your comment on paper, write ``Nursery Guides (Matter 
No. P994248)'' on your comment and on the envelope, and mail your 
comment to the following address: Federal Trade Commission, Office of 
the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex A), 
Washington, DC 20580, or deliver your comment to the following address: 
Federal Trade Commission, Office of the Secretary, Constitution Center, 
400 7th Street SW, 5th Floor, Suite 5610, Washington, DC 20024. If 
possible, please submit your paper comment to the Commission by courier 
or overnight service.
    Because your comment will be placed on the publicly accessible FTC 
website at www.ftc.gov, you are solely responsible for making sure that 
your comment does not include any sensitive or confidential 
information. In particular, your comment should not include any 
sensitive personal information, such as your or anyone else's Social 
Security number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. You are also 
solely responsible for making sure that your comment does not include 
any sensitive health information, such as medical records or other 
individually identifiable health information. In addition, your comment 
should not include any ``trade secret or any commercial or financial 
information which is . . . privileged or confidential''--as provided by 
section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 
16 CFR 4.10(a)(2)--including in particular competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    Comments containing material for which confidential treatment is 
requested must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with FTC Rule 4.9(c). In particular, 
the written request for confidential treatment that accompanies the 
comment must include the factual and legal basis for the request, and 
must identify the specific portions of the comment to be withheld from 
the public record. See FTC Rule 4.9(c). Your comment will be kept 
confidential only if the FTC General Counsel grants your request in 
accordance with the law and the public interest. Once your comment has 
been posted on the public FTC website--as legally required by FTC Rule 
4.9(b)--we cannot redact or remove your comment from the FTC website, 
unless you submit a confidentiality request that meets the requirements 
for such treatment under

[[Page 45584]]

FTC Rule 4.9(c), and the General Counsel grants that request.
    Visit the FTC website to read this NPRM and the news release 
describing it. The FTC Act and other laws that the Commission 
administers permit the collection of public comments to consider and 
use in this proceeding, as appropriate. The Commission will consider 
all timely and responsive public comments that it receives on or before 
November 5, 2018. For information on the Commission's privacy policy, 
including routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

List of Subjects in 16 CFR Part 18

    Advertising, Nursery, Trade practices.

PART 18--[REMOVED]

0
For the reasons stated in the preamble, and under the authority of 15 
U.S.C. 45, the Federal Trade Commission proposes to remove 16 CFR part 
18.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2018-19227 Filed 9-7-18; 8:45 am]
 BILLING CODE 6750-01-P