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That in the advertising, labeling, selling, or offering for sale, of such products, full and nondeceptive disclosure is made respecting the products as specified in the regulations in this part for the words "waterproof," "waterproofing," and terms of similar import; and Provided also, That no deception or misrepresentation is involved in the use made of any such word or term in said name of corporation or company; and Provided further, That such name is not used in a manner contrary to the provisions of § 169.9.

(d) Use of words "watertight," "moistureproof," "vaporproof," and "watersealed." The requirements relating to the words "watertight," "moistureproof," vaporproof," and "water-sealed" shall be the same as specified in the foregoing provisions of this section for "waterproof" and "waterproofing," and representations of similar import.

CROSS REFERENCE: For provisions relating to "damp-proof" and "damp-proofing," and "water-resistant" and "damp-resistant," see §§ 169.3 and 169.4, respectively.

[Rule 2]

§ 169.3 Misuse of the words "dampproof" and "dampproofing." (a) In the sale, offering for sale, or distribution of industry products, it is an unfair trade practice to use the word "dampproof” or "dampproofing" in any manner having the capacity and tendency or effect of misleading or deceiving purchasers, prospective purchasers, or the public as to the protection against water or moisture afforded by the products to which such term is applied, or otherwise.

(b) Nothing in this section shall be construed as preventing the use of the word "dampproof" or "dampproofing" as descriptive of a product for use above grade only, where the fact that such product is for above-grade use only is clearly disclosed and where such product, when properly applied 2 to any kind or type of masonry structures, will for the life of any such structure afford impermeability to such moisture and water contacts as may reasonably be expected to be encountered above grade; Provided, however, That if such protection will not obtain for all of the life of any such structure but will obtain for a substantial period thereof, or if such protection will not obtain with respect to all kinds of masonry and types of structures above grade, then any such limitation as to

time,1 kind or kinds of masonry, and type or types of structures, shall also be disclosed.

(c) When it is not disclosed, clearly and nondeceptively, that the product is for above-grade use only, use of the word "dampproof" or "dampproofing" shall be subject to the provisions of § 169.2 relating to the use of the words "waterproof" and "waterproofing."

(d) Disclosures required under the provisions of this section shall be set forth conspicuously in immediate conjunction with the word or term to which such disclosures relate and shall be in conformity with the requirements specified in § 169.2 (b) (1). [Rule 3]

§ 169.4 Misuse of the words "waterresistant" and "damp-resistant." In the sale, offering for sale, or distribution of industry products, it is an unfair trade practice to use the word "water-resistant" or "damp-resistant" as descriptive of any industry product which, when properly integrated with or applied 2 to masonry units or masonry structures, fails to render such units or structures less permeable to water and moisture to a substantial degree and for a substantial period of time; nor shall any such word or term be modified or accompanied by other words or terms so as to import a greater or more lasting

Duration may be indicated by disclosure of a minimum and maximum period, such as "from 3 to 5 years," "from 5 to 7 years," etc.; but when so indicated the minimum and maximum periods shown should be in equal relation to the average duration and the maximum be such as may be expected to be reached in a substantial number of cases; and further, the maximum should not be shown unless in immediate conjunction with the minimum nor with greater conspicuousness than the minimum.

When claim is made by the manufacturer or seller of improper application (or integra- tion), it is deemed necessary under this rule that such manufacturer or seller show that clear, reasonable, and explicit instructions for application had been issued and made available to the purchaser and that the application of the product was not made in conformity with such instructions. When other or additional instructions or representations regarding application have been furnished or made verbally or in writing by the manufacturer or seller, or their agents, respectively, it is deemed necessary for such manufacturer or seller also to show that the application was not made in conformity therewith.

efficacy than such as is possessed by the product, nor be used in any manner having the capacity and tendency or effect of misleading or deceiving. [Rule 4]

§ 169.5 Misuse of the words “weatherproof," "weatherproofing," etc. In the sale, offering for sale, or distribution of industry products, it is an unfair trade practice to use the term "weatherproof," "weatherproofing," or any other word or term of similar import, as descriptive of any industry product which, when properly integrated with or applied to a masonry unit or masonry structure, fails to render such unit or structure impervious to water and moisture and immune to weather damage during all of the life of such unit or structure; Provided, That if such impermeability and immunity are assured for a substantial period of time which is less than the life of the unit or structure, then such word "weatherproof," "weatherproofing,” etc., may be used as descriptive of such product if in immediate conjunction therewith, and with at least equal conspicuousness, there appears a full and nondeceptive disclosure of the fact that such impermeability and immunity are not assured beyond a stated period.'

"Weather damage," as the term is used in the preceding paragraph, is to be construed as meaning damage resulting from exposure to the atmosphere or any natural atmospheric condition, including

'When claim is made by the manufacturer or seller of improper application (or integration), it is deemed necessary under this rule that such manufacturer or seller show that clear, reasonable, and explicit instructions for application had been issued and made available to the purchaser and that the application of the product was not made in conformity with such instructions. When other or additional instructions or representations regarding application have been furnished or made verbally or in writing by the manufacturer or seller, or their agents, respectively, it is deemed necessary for such manufacturer or seller also to show that the application was not made in conformity therewith.

Duration may be indicated by disclosure of a minimum and maximum period, such as "from 3 to 5 years," "from 5 to 7 years," etc.; but when so indicated the minimum and maximum periods shown should be in equal relation to the average duration and the maximum be such as may be expected to be reached in a substantial number of cases; and further, the maximum should not be shown unless in immediate conjunction with the minimum nor with greater conspicuousness than the minimum.

rain, ice, snow, hail, fog, humidity, cold, heat, dryness, wind, and the rays of the sun. [Rule 5]

§ 169.6 Misuse of terms importing perpetuity. In the sale, offering for sale, or distribution of industry products, it is an unfair trade practice:

(a) To use the word "perpetual," "everlasting," "eternal," or any other word or term of similar import, as descriptive of the efficacy of an industry product, the result to be achieved by its use, or any of its properties or capabilities; or

(b) To use the word "permanent" or "permanently" as descriptive of the result to be achieved from the use of an industry product when such result will not endure throughout the life of the masonry unit or structure on or in which product is used without impairment, or under any other circumstance having the tendency and capacity or effect of deceiving or misleading. [Rule 6]

§ 169.7 Essential disclosures to prevent deception as to the use and application of industry products. (a) In order that deception of purchasers and prospective purchasers as to the use and application of industry products may be effectively prevented, the following information, when applicable, should be disclosed, clearly and nondeceptively, in advertising and labeling of products and in the sales literature pertaining thereto:

(1) Whether the product is intended for integration or surface application, and if the latter, whether for interior or exterior surface.

(2) That the full effectiveness of the product is dependent on the masonry unit or masonry structure being of a certain minimum thickness, and if so, a disclosure of such required thickness.

(3) That it is a prerequisite to full effectiveness that prior to the application of the product the masonry unit or masonry structure be conditioned for such application by repair, cleansing, roughing, wetting, application of a primer coat of another compound or material, or otherwise.

(4) That the proper application of the product requires skill, knowledge, or the use of special tools or equipment, not usually incident to the application of products of the same general function and purpose.

(5) That cracks or other structural failure resulting from settlement, ground movement, or other cause, may result in water or moisture leakage regardless of the efficacy of the industry product integrated or applied to the structure.

(6) That the character of results to be obtained through use of the product is dependent upon its proper application or integration.

In addition to such disclosures clear, explicit, and detailed directions as to the manner in which the product is to be integrated with or applied to the masonry unit or structure should be fully disclosed and made available to all purchasers, either by setting forth such directions on the product containers or by pamphlets or other means sufficient to acquaint purchasers therewith.

(b) The concealment or nondisclosure of any of the above information, with the capacity and tendency or effect of thereby misleading or deceiving purchasers or prospective purchasers, is an unfair trade practice.

(c) Nothing in this section shall be construed as requiring disclosure of such information on product containers, or on labels attached thereto, in the case of bulk shipments to building contractors or professional applicators not for resale but for integration or application by them or under their supervision, when it is shown that such information, including written directions as to proper manner of application, has otherwise been furnished to such contractors or applicators, and the word "waterproofing,' "dampproofing," or any other term or representation concerning the results to be achieved by use of the product does not appear on the container or labels, and no deception of contractors, purchasers, users, or of members of the public, is involved directly or indirectly. [Rule 7]

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§ 169.8 Misrepresentation as to character of business. It is an unfair trade practice for any concern, in the course of or in connection with the distribution of industry products, to represent, directly or indirectly, that it is a manufacturer of industry products, or that it owns or controls a factory making such products, when such is not the fact, or in any other manner to misrepresent the character, extent, or type of its business. [Rule 8]

§ 169.9 Deceptive use of trade or corporate names, or trade-marks, etc. The use of any trade name, corporate name,

trade-mark, or other trade designation which has the capacity and tendency or effect of misleading or deceiving the purchasing or consuming public as to the character, name, nature, efficacy,, or origin of any product of the industry, or any material used therein, or which is false or misleading in any other respect, is an unfair trade practice. (See also § 169.2 (c)) [Rule 9]

§ 169.10 Misrepresenting products as conforming to standard. Representing, through advertisement or otherwise, that any products of the industry conform to a standard recognized in or applicable to the industry when such is not the fact, with the capacity and tendency or effect of misleading or deceiving the purchasing or consuming public, is an unfair trade practice. [Rule 101

§ 169.11 Imitation of trade-marks, trade names, etc. The imitation or simulation of trade-marks, trade names, brands, or labels of competitors, with the capacity and tendency or effect of misleading or deceiving the purchasing or consuming public, is an unfair trade practice. [Rule 111

§ 169.12 Guarantees, warranties, etc. (a) In the sale, offering for sale, or distribution of industry products, it is an unfair trade practice for any member of the industry to issue or use any guarantee or purported guarantee which has the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers in any material respect.

(b) Under the foregoing provisions of this section, the word "guarantee," "guaranty," or "guaranteed" shall not be used unless in conjunction therewith there is set forth a statement of an undertaking which in fact constitutes a guarantee and in which the name of the guarantor is clearly set forth or indicated; nor shall guarantees of the following type or character be used:

(1) Guarantees containing statements, promises, representations, or assertions which have the capacity and tendency or effect of misleading and deceiving as to quality, efficacy, results from use, or duration of benefits; or

(2) Guarantees which are of such form, text, or character as to import, imply, or represent that the guarantee is broader than is in fact true, or will afford more protection to purchasers or users than is in fact true; or

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of customers or prospective customers, or to agents, employees, or representatives of competitors' customers or prospective customers, without the knowledge of their employers or principals, as an inducement to influence their employers or principals to purchase or contract to purchase products manufactured or sold by such industry member or the maker of such gift or offer, or to influence such employers or principals to refrain from dealing in the products of competitors or from dealing on contracting to deal with competitors. [Rule 18]

§ 169.19 Discrimination-(a) Prohibited discriminatory prices, or rebates, refunds, discounts, credits, etc., which effect unlawful price discrimination. It is an unfair trade practice for any member of the industry engaged in commerce,1 in the course of such commerce, to grant or allow, secretly or openly, directly or indirectly, any rebate, refund, discount, credit, purported allowance for alleged imperfect workmanship or defective material, or other form of price differential, where such rebate, refund, discount, credit, purported allowance for alleged imperfect workmanship or defective material, or other form of price differential, effects a discrimination in price between different purchasers of goods of like grade and quality, where either or any of the purchases involved therein are in commerce,1 and where the effect thereof may be to substantially lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, however:

(1) That the goods involved in any such transaction are sold for use, con

1 As here used, the word "commerce" means "trade or commerce among the several States and with foreign nations, or between the District of Columbia or any territory of the United States and any State, territory, or foreign nation, or between any insular possessions or other places under the jurisdiction of the United States, or between any such possession or place and any State or territory of the United States or the District of Columbia or any foreign nation, or within the District of Columbia or any territory or any insular possession or other place under the Jurisdiction of the United States." (With respect to the Philippine Islands, the foregoing is subject to such statutory limitations as relate thereto.)

sumption, or resale within any place under the jurisdiction of the United States;

(2) That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered;

(3) That nothing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce 1 from selecting their own customers in bona fide transactions and not in restraint of trade;

(4) That nothing herein contained shall prevent price changes from time to time where made in response to changing conditions affecting either (i) the market for the goods concerned, or (ii) the marketability of the goods, such as, .but not limited to, actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned.

(b) Prohibited brokerage and commissions. It is an unfair trade practice for any member of the industry engaged in commerce,1 in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, or merchandise, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact for or in behalf, or is subject to the direct or indirect control, of any party to such transaction other than the person by whom such compensation is so granted or paid.

(c) Prohibited advertising or promotional allowances, etc. It is an unfair trade practice for any member of the industry engaged in commerce to pay or contract for the payment of advertising or promotional allowances or any other thing of value to or for the benefit of a customer of such member in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products or commodities manufactured, sold, or offered for sale by such member, unless

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