This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

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Rules and Regulations Federal Register

70053 

Vol. 79, No. 227 

Tuesday, November 25, 2014 

1Retail food stores are stores that advertise food 

prices and sell more than incidental or minimal 

amounts of food. Federal Trade Commission: Part 

424—Retail Food Store Advertising and Marketing 

Practices, 36 FR 8777 at 8781 (May 13, 1971) (‘‘Rule 

Promulgation’’). 

2 Id. 

3 Federal Trade Commission: Amendment to 

Trade Regulation Rule Concerning Retail Food 

Store Advertising and Marketing Practices: Final 

Amendments to Trade Regulation Rule, 54 FR 

35456 (Aug. 28, 1989) (‘‘Rule Amendment’’). 

4Excessive overstocking caused retail food stores 

to carry excess inventory, including perishables, 

and to incur monitoring, recordkeeping, legal and 

survey costs, and indirect costs to document Rule 

compliance. Id. at 35460–35461. The record 

indicated that the costs imposed by the original rule 

exceeded benefits by ratios from over 21⁄2 to one to 

nearly eight to one. Id. at 35461. 

5 Id. at 35459. 

6 Federal Trade Commission: Retail Food Store 

Advertising and Marketing Practices Rule: Advance 

Notice of Proposed Rulemaking; Request For Public 

Comment, 76 FR 51308 (Aug. 18, 2011) (‘‘Request 

for Public Comment’’). 

7 Id. 

8 Id. 

9All comments are available at: http://

www.ftc.gov/policy/public-comments/initiative-387. 

This document cites to these comments by 

indicating the surname or short form for the 

commenter, e.g., ‘‘FMI’’ for the Food Marketing 

Institute, and, for comments of more than one page, 

the page of the comment unless the citation refers 

to the entire comment. Cites to ‘‘John K’’ reference 

the comment signed in that way. 

10FMI at 1. 

11 Id. 

12Hawthorne, DeWitt, Cosser, Dexter, Lewis, 

Marshall, Thompson, Ash, Herman, Hellmueller, 

Wright, Ickes, Gregory, Harris, Heiser, Nealy, Haass, 

Continued 

FEDERAL TRADE COMMISSION 

16 CFR Part 424 

Retail Food Store Advertising and 

Marketing Practices Rule 

AGENCY: Federal Trade Commission 

(‘‘Commission’’ or ‘‘FTC’’). 

ACTION: Final rule. 

SUMMARY: The FTC has completed its 

regulatory review of its Retail Food 

Store Advertising and Marketing 

Practices Rule (‘‘Unavailability Rule’’ or 

‘‘Rule’’). After reviewing public 

comments regarding the Rule’s overall 

costs, benefits, and regulatory and 

economic impact, the Commission 

retains the Rule. The Commission, 

however, takes this opportunity to issue 

guidance concerning the Rule’s 

coverage. The Commission also corrects 

a typographical error, and ceases to 

publish dissents to the Rule’s previous 

amendment. 

DATES: This action is effective on 

December 10, 2014. 

ADDRESSES: This document is available 

on the Internet at the Commission’s Web 

site, www.ftc.gov. Relevant portions of 

this proceeding, including the public 

comments received in response to the 

Advance Notice of Proposed 

Rulemaking, are available at: http://

www.ftc.gov/policy/public-comments/

initiative-387 and the related News 

Release is available at: http://

www.ftc.gov/opa/2011/08/

retailfood.shtm. 

FOR FURTHER INFORMATION CONTACT: Jock 

Chung, (202) 326–2984, Attorney, 

Division of Enforcement, Bureau of 

Consumer Protection, Federal Trade 

Commission, 600 Pennsylvania Avenue 

NW., CC–9528, Washington, DC 20580. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Unavailability Rule prohibits 

retail food stores 1 from advertising 

prices for food, grocery products, or 

other merchandise unless those stores 

have the advertised products in stock 

and readily available at, or below, the 

advertised prices. The Commission 

issued the Rule in 1971 to prevent 

unavailability and overpricing of 

advertised items.2 The Rule was based 

upon extensive research finding that 

retail food stores frequently did not 

make food readily available at 

advertised prices. 

In 1989, the Commission amended the 

Rule.3 These amendments provide an 

exception where ‘‘the advertisement 

clearly and adequately discloses that 

supplies of the advertised products are 

limited or the advertised products are 

available only at some outlets.’’ 

Furthermore, these amendments 

provide four defenses: Retail food stores 

do not violate the Rule if they (a) order 

advertised products early enough and in 

sufficient quantities to meet ‘‘reasonably 

anticipated demand,’’ (b) issue 

rainchecks for the advertised products, 

(c) offer comparable products at 

comparable prices to the advertised 

products, or (d) offer other 

compensation at least equal to the 

advertised value. These amendments 

eliminated the costs of excessive 

overstocking, which were passed on to 

consumers and greatly exceeded any 

benefits to consumers,4 while 

minimizing consumer losses associated 

with wasted trips to retail food stores.5

II. Regulatory Review 

The Commission reviews its rules and 

guides periodically to seek information 

about their costs and benefits, as well as 

their regulatory and economic impact. 

This information assists the 

Commission in identifying rules and 

guides that warrant modification or 

rescission. 

Pursuant to this process, on August 

18, 2011, the Commission sought 

comment on whether there is a 

continuing need for the Unavailability 

Rule.6 The Commission also invited 

comments suggesting modifications to 

the Rule.7 Additionally the Commission 

sought specific comments and evidence 

concerning whether it should broaden 

the Rule to include stores not currently 

covered by the Rule, such as drugstores, 

department stores, or electronics 

retailers.8

III. Regulatory Review Comments 

The Commission received comments 

from two organizations and fifty 

individuals.9 The Food Marketing 

Institute (‘‘FMI’’) identifies itself as a 

national trade association with 1,500 

members, consisting of food retailers 

and wholesalers, in the United States 

and other countries.10 FMI states that its 

members operate 26,000 retail food 

stores and 14,000 pharmacies, make 

three-quarters of all retail food store 

sales in the United States, and have 

combined annual sales of $680 billion.11

The Heritage Foundation (‘‘HF’’) 

describes itself as a nonprofit 

corporation with a mission ‘‘to 

formulate and promote conservative 

public policies . . .’’ 

Forty-eight individuals explicitly or 

implicitly supported the Rule by 

relating personal benefits from retail 

food store rainchecks.12 For example, 


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70054 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations 

Skaggs, Pritchard, Goodman, Frame, Cummings, 

DelSole, Wheat, Marino, John K, Rasley, Bacher, 

Samuel, Purcell, Dickey, Crofoot, Sinex, Aikins, 

Anonymous/Mad in Miami, Thorson, Angelo, 

Bates, Burleson, Boyd, Black, Marcuse, Steenhoven, 

Gettz, Millison, Nardo, Rose, and Doyal. 

13Angelo. 

14FMI, HF, Lunsford, Fitzsimmons. 

15FMI commented that it did not believe that 

there is a continuing need for the rule because 

competitive pressures induce retailers to respond to 

the needs of their customers, and ‘‘[t]here is no 

incentive for grocery retailers to engage in the types 

of activity the Unavailability Rule was intended to 

address.’’ FMI at 2–4. 

16HF asserted that ‘‘market competition clearly 

can police against any grocery businesses that 

advertise products that they do not have for sale at 

the advertised price.’’ HF at 3. 

17Fitzsimmons recommended that the Rule 

define food deserts as low-income areas where the 

nearest grocery store is more than a mile away. 

Fitzsimmons at 3. 

18Lunsford argued that ‘‘market competition 

should deter most business from deceptive 

practices.’’ 

19FMI at 5. 

20FMI stated that stockouts hurt retailers because 

they increase costs while also decreasing customer 

satisfaction. Id. at 3–4. HF stated that ‘‘[n]o-one 

would condone the commercial conduct prohibited 

by the Unavailability Rule.’’ HF at 2. Lunsford 

indicated that unavailability and overpricing are 

not ‘‘honest business.’’ Fitzsimmons proposed 

retaining and expanding the Rule for certain 

geographic areas to prevent ‘‘predatory business 

practices.’’ Fitzsimmons at 2–3. This support 

contrasts with the evidence that compliance with 

the Commission’s original Rule was costly and 

wasteful. See Rule Amendment, 54 FR 35460–35462 

(noting, for example, that retail food stores stocked 

excessive inventory and incurred monitoring and 

recordkeeping costs to comply with the original 

Rule). 

21 In American Financial Services Ass’n v. FTC, 

767 F.2d 957, 987–988 (D.C. Cir. 1985), the court 

found that it was not unreasonable for the 

Commission, in promulgating the Credit Practices 

Rule, to discount ‘‘abstract or . . . theoretical 

arguments . . . which have little or no factual 

support in the record.’’ 

22HF and Fitzsimmons comment that there are 

92,300 grocery stores in America, but do not 

provide evidence that this number is above a 

threshold for a sufficiently competitive 

marketplace. HF at 2, Fitzsimmons at 1. 

23HF at 3, Fitzsimmons at 2–3. 

24 Dexter, Harris, Heiser, Haas, Pritchard, 

Cummings, Wheat, John K, Dickey, Crofoot, 

Burleson. 

25HF at 4 & n.14, Lunsford. 

26The four state laws cited by HF do not establish 

that most states directly regulate retail food stare 

advertising. Indeed, one of those laws broadly 

prohibits unfair and deceptive practices but does 

not address specifically the advertising of sale 

items. Wash. Rev. Code § 19.86.020. 

27Forty-eight consumer commenters supported 

continuing to require rainchecks. 

one commenter stated that he 

accumulated 50 rainchecks in a 6-month 

period due to stockouts.13

Two individual commenters joined 

the organizational commenters in 

questioning whether the Commission 

should retain the Rule.14 FMI 

commented that the Rule is unnecessary 

because competition forces retail food 

stores to avoid stockouts and to 

compensate customers even without the 

Rule.15 Nonetheless, FMI stated that the 

Rule imposes no significant costs on 

retail food stores. FMI also cautioned 

that if the Commission retains the Rule, 

it should keep the 1989 amendments to 

avoid the costs eliminated by those 

amendments. 

HF recommended repealing the Rule, 

arguing increased competition should 

protect consumers.16 In support of this 

argument, it asserted that the number of 

grocery stores in America has grown 

substantially since the Rule was 

amended in 1989, noting that today 

there are 92,300 grocery stores 

nationwide and that large chains run 

thousands of stores each. It did not 

provide data on the number of stores in 

1989. HF also stated that the number of 

farmers’ markets increased between 

1994 and 2011. Finally HF commented 

that state regulation is adequate to 

protect consumers where competitive 

pressure is insufficient. 

Fitzsimmons recommended repealing 

the Rule generally while expanding it in 

‘‘food deserts.’’ 17 For areas other than 

food deserts, he argued market 

competition is sufficient to protect 

consumers. Fitzsimmons also 

recommended that the Commission 

expand the Rule to cover non-traditional 

retail food stores in food deserts, where 

competition is insufficient to protect 

consumers. 

Finally, Lunsford recommended 

repealing the Rule because market 

competition and state regulatory 

agencies adequately protect 

consumers.18

IV. Retention of the Unavailability Rule 

The Commission retains the rule in its 

existing form. To determine whether the 

Rule should be amended, repealed, or 

retained, the Commission has evaluated 

a number of factors, including the 

relative costs and benefits of the Rule 

and its effect on competition and 

consumer choice. The Commission has 

determined that the Rule imposes no 

significant costs on retail food stores, 

and it benefits consumers as there is 

evidence that market or state regulatory 

forces would not adequately protect 

consumers without the Rule. Given this 

record, the Commission has no basis to 

repeal or amend the Rule at this time. 

None of the comments identified any 

specific costs or burdens associated 

with complying with the Rule. To the 

contrary, FMI—which represents 

grocery companies and thus would have 

the clearest understanding of any 

burdens the Rule might impose— 

commented that it ‘‘does not believe the 

Rule imposes significant costs on 

retailers.’’ 19 Furthermore, even the 

comments that opposed retention 

favored the consumer-friendly practices 

required by the Rule, including 

restrictions on overpricing and 

unavailability.20 These comments 

simply opined that, even if the Rule 

were eliminated, market forces would 

result in the same arrangements the 

Rule requires. If this is true, the Rule 

cannot impose any significant cost. 

Conversely, the record lacks factual 

support to conclude that market forces 

alone would be sufficient to protect 

consumers without the Rule.21

Although comments state that the 

number of grocery stores in America has 

increased, they do not provide any 

market analysis of the level of 

competition in this industry.22 The 

market may have many participants 

nationwide, but there is no indication 

that competition exists sufficient to 

preserve the benefits of the Rule for all, 

or even most, local markets throughout 

the country. 

Two commenters that questioned the 

general need for the Rule asserted that 

there are geographic areas of lower food 

marketplace competition, and 

demographic groups with limited food 

shopping options.23 Thus, even if, as 

asserted, the national-level food 

marketplace were sufficiently 

competitive, the Rule would still be 

necessary to protect groups with limited 

food shopping options. 

Further, there is evidence that even 

with the Rule, some stores do not 

respond to the current level of 

competition by avoiding stockouts and 

providing rainchecks or other 

compensation. Eleven commenters 

complained of difficulties obtaining 

rainchecks, or of inadequate rainchecks 

that, for example, expired before sale 

items were restocked.24 Thus, the 

weight of the evidence shows that 

market forces are not sufficient to 

ensure that retail food stores make 

useful rainchecks conveniently 

available. 

HF and Lunsford commented that 

state consumer protection agencies 

provide sufficient recourse when 

retailers deceptively advertise the 

availability of sale items.25 They did 

not, however, submit evidence about 

actions taken by state agencies. Notably, 

no state or local regulatory agencies 

submitted comments. The record, 

therefore, does not support the 

argument that state regulations supplant 

the continued need for the Rule.26

Because the Rule does not impose 

significant costs, the practices it 

requires benefit consumers, 27 and there 

is evidence that those practices would 

not continue in the absence of the Rule, 


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Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations 70055 

28Request for Public Comment, 76 FR at 51309. 

29See Dexter, Lewis, Marshall, Thompson, Ash, 

Hellmueller, Wright, Ickes, Gregory, Harris, Heiser, 

Nealy, Skaggs, Pritchard, Frame, Cummings, 

DelSole, John K, Bacher, Samuel, Purcell, Crofoot, 

Sinex, Anonymous/Mad in Miami, Thorson, Bates, 

Burleson, Boyd, Steenhoven, Gettz, Rose, and 

Doyal. Several comments suggested amending the 

Rule to cover specific retailers. See Wright 

(Walgreens), Ickes (CVS, Rite-Aid, Target), Gregory 

(Target), Heiser (Target, Wal-Mart), Haas 

(Walgreens), Frame (CVS), Bates (Wal-Mart, Fred 

Myer), Gettz (Walgreens, CVS, Rite-Aid), and Rose 

(Walgreens, Wal-Mart, Target). The Commission 

declines to amend the Rule to name specific 

retailers because, among other things, their business 

models could change, taking them out of the ambit 

of the Rule. 

30See Thompson, Ickes, and Harris. 

31See Ash. 

32See Wright, Heiser. 

33Fitzsimmons. 

34 ‘‘Since the late 1990s, nontraditional retailers 

have steadily increased their relative share of foodat-home sales, compared with traditional retailers. 

Nontraditional stores’ share of food-at-home sales 

increased from 13.7 percent in 2000 to 21.5 percent 

in 2011 (traditional foodstores and nonstore food 

sales—such as mail order, home delivery, and 

direct sales by farms, processors, and wholesalers— 

account for the remaining shares). Most of the 

growth in food sales is due to supercenters and 

warehouse club stores, whose sales more than 

doubled over the period. More recently, dollar 

stores—such as Dollar General and Family Dollar— 

and drugstores—such as Rite Aid, CVS, and 

Walgreens—have increased sales by expanding 

retail food offerings.’’ U.S. Dept. of Agriculture, 

Econ. Res. Serv., Retail Trends, February 5, 2014, 

available at http://www.ers.usda.gov/topics/foodmarkets-prices/retailing-wholesaling/retailtrends.aspx. 

35Ash, Ickes, Sinex at 1, Black. 

36 Dexter, Heiser, Haass, Cummings, Pritchard, 

Dickey, Crofoot, Burleson. 

37Cummings, Boyd, Thorson, Ickes. 

38Ash, Ickes, Sinex at 1, Black. 

39 Fred Meyer, Inc., 87 F.T.C. 112, 115 (1976); 

Safeway Stores, Inc., 91 F.T.C. 975 (1978). 

40 Fisher Foods, Inc., 90 F.T.C. 473 (1977); The 

Kroger Co., 90 F.T.C. 459 (1977); and Shop-Rite 

Foods, Inc., 90 F.T.C. 500 (1977). 

41Paragraph 424.1(b)(1)(i) of the original Rule 

required that where advertised items are not readily 

available to customers, i.e., displayed for 

consumers, retail food stores provide ‘‘clear and 

adequate notice that . . . items are in stock and 

may be obtained upon request.’’ Rule Promulgation, 

36 FR at 8781. Paragraph 424.1(b)(2) of the original 

Rule prohibited any failure ‘‘to make the advertised 

items conspicuously and readily available for sale 

at or below the advertised prices.’’ Id. 

42 Federal Trade Commission: Retail Food Store 

Advertising and Marketing Practices: Notice of 

Proposed Rulemaking, 50 FR 43224 at 43226 (Oct. 

24, 1985) (‘‘Notice of Proposed Rulemaking’’). 

43Paragraph 424.1 of the amended Rule. Id. at 

43225. 

44Moreover, advertising one price and charging a 

higher price is an unfair or deceptive act or practice 

in violation of Section 5(a) of the FTC Act. See, e.g., 

Budget Rent-A-Car System, Inc., FTC Docket C– 

4212 (Jan. 2, 2008). 

45Heiser, Pritchard, Dickey, Crofoot, and 

Burleson stated that stores had made them wait 

excessive periods during a visit to receive a 

raincheck. Dexter, Heiser, Haass, and Cummings 

stated that stores had refused to provide rainchecks 

prior to the final date of sales. 

46 Dexter, Harris, Wheat. John K recommended 

that the Commission amend the Rule to require 

rainchecks with no expiration date. The 

Commission does not have evidence on the costs or 

benefits of such an amendment, and therefore 

declines to propose it at this time. 

47 16 CFR 424.2(b) 

48Rain Check Definition, Oxford Dictionaries, 

http://www.oxforddictionaries.com/us/definition/

american_english/rain-check (last visited Nov. 12, 

2014). 

49The violation occurs when a store advertises a 

sale price for an item but does not have it in stock 

and readily available for consumers during the 

advertised sale period. 16 CFR 424.1. 

the Commission retains the Rule in its 

present form. 

V. Coverage of the Unavailability Rule 

The Commission asked whether it 

should broaden the Rule’s coverage 

beyond retail food stores.28 In response, 

thirty two comments 29 favored 

extending coverage to include, for 

example, retail stores generally,30 Black 

Friday retailers,31 and electronics 

retailers.32 One comment favored 

expanding the Rule to include 

nontraditional food stores located in 

food deserts.33 None, however, provided 

evidence about the effects of amending 

the Rule’s coverage, or evidence that the 

Rule’s present coverage is inadequate. 

Therefore, the Commission is not 

proposing to extend the coverage of the 

Rule. 

However, the Commission notes that 

the Rule is not limited to ‘‘traditional’’ 

retail food stores. For example, 

supercenters, warehouse clubs, dollar 

stores, and drug stores increasingly offer 

food or grocery products and advertise 

discounts for these items. Such stores 

constitute a significant portion of the 

retail food marketplace. According to 

the U.S. Department of Agriculture, the 

proportion of American food sales for 

home consumption by nontraditional 

food retailers rose from 13.7 percent in 

2000 to 21.5 percent in 2011.34 The Rule 

covers these types of stores. 

VI. Other Suggested Rule Changes 

In its request for public comments, 

the Commission invited suggested Rule 

changes. In response, comments 

suggested amending the Rule to: 

(1) Prohibit: (a) failure to 

conspicuously display advertised items, 

e.g., positioning products so that sale 

priced items are difficult to identify or 

locate, and (b) overpricing, e.g., 

scanning merchandise at full price 

rather than at the sale price; 35

(2) require retail food stores to 

provide rainchecks promptly upon 

demand; 36 and 

(3) require retail food stores to 

compensate consumers for 

consequential losses caused by 

unavailability.37

As set forth below, the first and 

second suggestions are unnecessary 

because they are already encompassed 

by the Rule, and the Commission 

declines to propose the third because 

the record lacks evidence to support 

such a change. 

A. Display of Advertised Items and 

Overpricing 

The Rule already prohibits failure to 

conspicuously display advertised items 

and overpricing. Consequently, no 

amendment is necessary to address 

concerns about these issues.38

The Commission has entered two 

cease and desist orders against retail 

food stores solely for overpricing,39 and 

three for overpricing and 

unavailability.40 These orders 

demonstrate that merely stocking 

advertised items was not sufficient to 

comply with the original Rule. 

The Commission amended the Rule in 

1989 to eliminate explicit display and 

pricing requirements.41 At that time, 

however, the Commission stated ‘‘the 

simple requirement that advertised 

items be ‘readily available to customers’ 

implicitly includes a requirement that 

items be stocked in such a way that a 

reasonable consumer would not be 

precluded from obtaining them.’’ 42 The 

Commission further stated that the 

prohibition against overpricing ‘‘is 

implicit in the requirement that 

products advertised for sale at a stated 

price be available.’’ 43 Consequently, the 

Rule already requires proper display 

and prohibits overpricing.44

B. Rainchecks 

The raincheck defense, 16 CFR 

424.2(b), provides that a store complies 

with the Rule if it offers consumers a 

‘‘raincheck’’ when the advertised 

product is out of stock. Commenters 

requested two amendments to address 

barriers they have encountered in the 

market. First, they asked the FTC to 

require stores to provide rainchecks 

during a consumer’s initial visit to a 

store.45 Second, they requested an 

amendment to prohibit rainchecks that 

expire before the store restocks the 

advertised merchandise.46 Because the 

Rule already prohibits these practices, 

there is no need for amendments. 

The raincheck defense only provides 

protection if the store ‘‘offers’’ a 

raincheck at the time a consumer 

attempts to purchase the sale item.47 By 

definition, a raincheck is a guarantee to 

sell an item in the future at its current 

advertised price.48 If, at the time of the 

violation,49 a store promises to offer a 

raincheck in the future, it has merely 

promised to make the requisite offer at 

a future date. It has failed to offer a 


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70056 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations 

50 16 CFR 424.1. 

51Rule Amendment, 54 FR at 35463. 

52To the extent that there is any ambiguity about 

the meaning of ‘‘raincheck,’’ it is proper to interpret 

the term consistently with the purpose of the Rule. 

See Public Citizen v. U.S. Dept. of Justice, 491 U.S. 

440, 455 (1989). 

53Notice of Proposed Rulemaking, 50 FR at 

43230. See also Id. at 43225 (‘‘the Rule could 

produce benefits by saving shoppers an extra trip 

back to the same store or to another store to 

purchase the advertised item (the ‘trip gain’).’’); 

Rule Amendment, 54 FR at 35459 (the Rule benefits 

consumers ‘‘through the avoidance of trip losses 

(‘the trip gain’), which are losses that result from 

the expense of wasted trips to retail outlets for 

advertised items that are unavailable.’’); Id. at 35463 

(‘‘Savings that have been realized by consumers 

[from the Rule] are principally the result of 

reduction in the number of unsuccessful trips made 

to purchase items that are not in stock.’’). 

54Cosser, Dexter, Lewis, Wright, Ickes, Heiser, 

Cummings, John K, Rasley. 

55Cummings, Boyd, Thorson, Ickes. 

56Thorson proposed amending the Rule to 

require retail food stores to ‘‘duplicate conditions 

at the time of the sale . . .’’ Thorson at 1. 

57Section 553 of the Administrative Procedure 

Act, 5 U.S.C. 553(b)(3)(B), provides that, when an 

agency for good cause finds that notice and public 

procedure are impracticable, unnecessary, or 

contrary to the public interest, the agency may issue 

a final rule without providing notice and an 

opportunity for public comment. The Commission 

has determined that there is good cause for making 

this technical correction final without prior 

opportunity for comment, because this is merely a 

technical change to correct a typographical error 

and is not a substantive change. 

58This will harmonize the Rule with the 

Commission’s normal practice, which is not to 

publish dissents in the Code of Federal Regulations. 

The dissents will remain available to the public at 

54 FR 35468. 

raincheck at all, and the defense is not 

available to it.50

Similarly, a store that offers a 

‘‘raincheck’’ that expires before the store 

restocks the advertised item cannot use 

the defense. The raincheck must 

provide ‘‘compensation equal to that of 

the advertised savings.’’ 51 A raincheck 

that expires before consumers can use it 

has no value, much less value equal to 

the advertised savings. Therefore, it is 

not a ‘‘raincheck’’ at all. 

These clear requirements are 

consistent with the purpose of the 

‘‘raincheck’’ defense.52 The defense 

protects consumers’ ability to purchase 

items at advertised sale prices without 

‘‘needless transportation cost[s].’’ 53

Using a raincheck, a consumer can 

purchase an item at the sale price 

during the consumer’s next trip to the 

store, thereby avoiding extra travel time 

or expenses. Failing to offer rainchecks 

at the time it cannot make advertised 

products readily available to consumers, 

such as when a store refuses to provide 

rainchecks until a sale ends, would 

require consumers to make additional 

trips and pay extra travel costs, thereby 

undermining the purpose of the Rule.54

C. Consequential Costs From 

Unavailability 

Four comments noted that consumers 

may not realize all savings even when 

offered rainchecks or comparable 

merchandise under the defenses in 

paragraphs 424.2(b), (c), or (d) of the 

Rule.55 For example, promotions such 

as ‘‘Register Rewards’’ or coupon 

doubling may expire before consumers 

can use rainchecks, or manufacturers’ 

coupons may not apply to similar 

products offered under the defense in 16 

CFR 424.2(c). Therefore, these 

comments proposed amending the Rule 

to require retail food stores to 

compensate consumers for 

consequential costs caused by 

unavailability.56

The record, however, does not contain 

evidence regarding the nature or extent 

of any such consequential losses. Nor 

does it contain evidence to support a 

factual determination regarding the 

potential costs or benefits of amending 

the Rule to require compensation for 

consequential costs from unavailability. 

Consequently, the Commission does not 

propose amending the Rule at this time 

to require compensation for 

consequential losses. 

VII. Conclusion 

For the reasons described above, the 

Commission has determined to retain 

the current Retail Food Store 

Advertising and Marketing Practices 

Rule, issue a Rule amendment 

correcting a typographical error,57 and 

cease publishing dissents to the Rule’s 

previous amendment.58

List of Subjects in 16 CFR Part 424 

Advertising, Foods, Trade practices. 

For the reasons set forth in the 

preamble, the Federal Trade 

Commission amends 16 CFR part 424, 

as follows: 

PART 424—RETAIL FOOD STORE 

ADVERTISING AND MARKETING 

PRACTICES 

■ 1. The authority citation for part 424 

is revised to read as follows: 

Authority: 15 U.S.C. 41–58. 

§ 424.1 [Amended] 

■ 2. Amend § 424.1 by removing the 

words ‘‘In connection with the sale of 

offering for sale’’ and adding, in their 

place, the words ‘‘In connection with 

the sale or offering for sale’’. 

§ 424.2 [Amended] 

■ 3. Remove the two statements that 

follow the text of § 424.2(d). 

By direction of the Commission. 

Donald S. Clark, 

Secretary. 

[FR Doc. 2014–27798 Filed 11–24–14; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Parts 2, 157, and 380 

[Docket No. RM12–11–002; Order No. 

790–A] 

Revisions to Auxiliary Installations, 

Replacement Facilities, and Siting and 

Maintenance Regulations 

AGENCY: Federal Energy Regulatory 

Commission, Energy. 

ACTION: Final rule; order on rehearing 

and clarification. 

SUMMARY: On rehearing, the Federal 

Energy Regulatory Commission 

(Commission) reaffirms its basic 

determinations in Order No. 790 and 

modifies and clarifies certain aspects of 

the Final Rule. Order No. 790 amended 

the Commission’s regulations to clarify 

that auxiliary installations added to 

existing or proposed interstate 

transmission facilities under the 

Commission’s regulations must be 

located within the authorized right-ofway or site for existing facilities or the 

right-of-way or site to be used for 

facilities proposed in a pending 

application for case-specific certificate 

authority or in a prior notice filing 

under the Commission’s blanket 

certificate regulations, and use only the 

same temporary work space that was or 

will be used to construct the existing or 

proposed facilities. Order No. 790 also 

codified the common industry practice 

of notifying landowners prior to coming 

onto their property to undertake 

projects, or certain replacements, or 

certain maintenance activities. 

DATES: This rule is effective January 26, 

2015. 

FOR FURTHER INFORMATION CONTACT: 

Katherine Liberty, Office of the General 

Counsel, Federal Energy Regulatory 

Commission, 888 First Street NE., 

Washington, DC 20426, (202) 502– 

6491, katherine.liberty@ferc.gov. 

Gordon Wagner, Office of the General 

Counsel, Federal Energy Regulatory 

Commission, 888 First Street NE., 

Washington, DC 20426, (202) 502– 

8947, gordon.wagner@ferc.gov. 

Howard Wheeler, Office of Energy 

Projects, Federal Energy Regulatory 

Commission, 888 First Street NE., 


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