The industry approves the practice of handling disputes in a fair and reasonable manner, coupled with a spirit of moderation and good will, and every effort should be made by the disputants themselves to arrive at an agreement. If unable to do so they should agree, if possible, upon arbitration under some one of the prevailing codes.

§ 33.105 Standard form of contract.

It is the judgment of this conference that the industry should adopt in cooperation with buyers a standard form of contract which will thoroughly protect the rights of both buyers and sellers. § 33.106

Definitions.

The industry records its approval of the definitions:

(a) A quarryman is one whose principal business is quarrying, sawing, and selling stone.

(b) A quarryman-cut stone contractor is one whose principal business is quarrying, machining, fabricating, and selling stone.

(c) A cut stone contractor is one whose principal business is buying, fabricating, and reselling stone.

§ 33.107 Industry standards.

The industry approves of the standard methods of classifying, grading and measuring of stone as adopted or sponsored by representative associations, institutes, or trade organizations.

COMMITTEE ON TRADE PRACTICES § 33.201 Industry committee.

The provisions of § 16.1 of this subchapter shall be applicable to an industry committee established under this part. [21 F.R. 1174, Feb. 21, 1956]

34.18 34.19 34.20

34.21

34.22 34.23

petitors.

Use of the word "free".

Use of lottery schemes.

Defamation of competitors or false disparagement of their products.

Prohibited forms of trade restraints

(unlawful price fixing, etc.)

Prohibited discrimination.

Aiding or abetting use of unfair trade practices.

AUTHORITY: The provisions of this Part 34 issued under secs. 6, 5, 38 Stat. 721, 719; 15 U.S.C. 46, 45.

SOURCE: The provisions of this Part 34 appear at 23 F.R. 4804, June 28, 1958, unless otherwise noted.

(a) Industry products. As used in this part, the term "industry products" includes all types of trees, small fruit plants, shrubs, vines, ornamentals, herbaceous annuals, biennials and perennials, bulbs, corms, rhizomes, and tubers which are offered for sale or sold to the general public. Included are products propagated sexually or asexually and whether grown in a commercial nursery or collected from the wild state. Such products are customarily used for outdoor planting. Not included are florists' or greenhouse plants solely for inside culture or use and annual vegetable plants. Likewise, gladiolus bulbs and corms are excluded inasmuch as they are covered by trade practice rules promulgated January 17, 1952.

(b) Industry members. Any person, firm, corporation, or organization engaged in the sale, offering for sale, or distribution in commerce of industry products, as defined above.

(c) Lining-out stock. Includes all plant material coming from propagating houses, beds, or frames, and young material such as seedlings rooted or unrooted cuttings, grafts or layers, of suitable size to transplant either in the nursery row or in containers for "growing on."

(d) Nursery-grown stock. Plants propagated and grown under cultivation, or plants transplanted from the wild and grown under cultivation for at least one full growing season.

§ 34.1

Deception (general).

(a) It is an unfair trade practice to sell, offer for sale, or distribute industry products by any method, or under any circumstance or condition, which has the capacity and tendency or effect of deceiving purchasers or prospective purchasers as to quantity, size, grade, kind, species, age, maturity, condition, vigor, hardiness, number of times transplanted, growth ability, growth characteristics, rate of growth or time required before flowering or fruiting, price, origin or place where grown, or in any other material respect.

(b) The inhibitions of this section shall apply to every type of advertisement or method of representation, whether in newspaper, periodical, sales catalog, circular, by tag, label or insignia, by radio or television, by sales representatives, or otherwise.

(c) Among practices inhibited by the foregoing are direct or indirect representations:

(1) That plants have been propagated by grafting or bud selection methods, when such is not the fact.

(2) That industry products are healthy, will grow anywhere without the use of fertilizer, or will survive and produce without special care, when such is not the fact.

(3) That plants will bloom the year round, or will bear an extraordinary number of blooms of unusual size or quality, when such is not the fact.

(4) That an industry product is a new variety, when in fact it is a standard variety to which the industry member has given a new name.

(5) That an industry product cannot be purchased through usual retail outlets, or that there are limited stocks available, when such is not the fact.

(6) That industry products offered for sale will be delivered in time for the next (or any specified) seasonal planting when the industry member is aware of factors which make such delivery improbable.

(7) That the appearance of an industry product as to size, color, contour, foliage, bloom, fruit or other physical characteristic is normal or usual when

the appearance so represented is in fact abnormal or unusual.

(8) That the root system of any plant is larger in depth or diameter than that which actually exists, whether accomplished by excessive packaging material, or excessive balling, or other deceptive or misleading practice.

(9) That bulblets are bulbs.

(10) That an industry product is a rare or unusual item when such is not the fact.

§ 34.2 Deception through use of names.

(a) In the sale, offering for sale, or distribution of an industry product, it is an unfair trade practice for any industry member to use a name for such product which has the capacity and tendency or effect of deceiving purchasers or prospective purchasers as to its true identity.

(b) Subject to the foregoing:

(1) When an industry product has a generally recognized and well-established common name, it is proper to use such name as a designation therefor, either alone or in conjunction with the correct botanical name of the product.

(2) When an industry product has a generally recognized and well-established common name, it is an unfair trade practice for an industry member to adopt and use a new name for the product unless such new name is immediately accompanied by the generally recognized and well-established common name, or by the correct botanical name, or by a description of the nature and properties of the product which is of sufficient detail to prevent confusion and deception of purchasers or prospective purchasers as to the true identity of the product.

(3) When an industry product does not have a generally recognized and well-established common name, and a name other than the correct botanical name of the product is applied thereto, such other name shall be immediately accompanied by either the correct botanical name of the product, or a description of the nature and properties of the product which is of sufficient detail as to prevent confusion and deception of purchasers and prospective purchasers as to the true identity of the product.

NOTE: Industry recommendation. The industry recommends that in administering this rule the Commission give consideration to the use of plant names listed in horticul

tural works such as Hortus Second, 1941, L. H. Bailey; Manual of Cultivated Plants, Rev. Ed. 1949, L. H. Bailey; Standard Cyclopedia of Horticulture, 2d Ed. 1925 (with reissues), L. H. Bailey; Check List of Native and Naturalized Trees of the United States, U. S. D. A. Agricultural Handbook 41, 1953, E. L. Little; Manual of Cultivated Trees and Shrubs Hardy in North America, 2d Ed. 1940, A. Rehder; Native Woody Plants of the United States, U. S. D. A. Misc. Publication 303, 1938, W. R. Van Dersal; Standardized Plant Names, 2d Ed. American Joint Committee on Horticultural Nomenclature, 1942; and to plant-name listings of well-recognized, nonprofit horticultural societies and organizations, such as the American Rose Society. § 34.3

Substitution of products.

With respect to industry products offered for sale by an industry member, it is an unfair trade practice for any member of the industry:

(a) To ship or deliver industry products which do not conform to representations made prior to securing the order or to specifications upon which the sale is consummated, without advising the purchaser of the substitution and obtaining his consent thereto prior to making shipment or delivery, where such practice has the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers; or

(b) To falsely represent the reason for making a substitution: Provided, however, That nothing in this section is intended to inhibit the shipment of products different from those ordered, prior to obtaining the purchaser's consent to such substitution, when the order is received by the industry member near the close of the planting season for the products ordered and the substitution involved relates but to a product or products the total price of which is comparatively small, and when:

(1) At the commencement of the planting season for the products ordered the industry member had a supply of such products sufficient to meet normal and reasonably expected orders therefor, and such supply has been exhausted; and

(2) The products substituted are of similar variety and of equal or greater value to those ordered by the purchaser and no additional charge is made therefor; and

(3) Notice of the substitution, with adequate identification of the substituted item or items, and with commitment of the industry member to refund any purchase price received for the substituted

products if such products are not acceptable to the purchaser and to compensate the purchaser for any expense involved in the return of the substituted products if refund is conditioned on the return thereof, is given the purchaser at the time of his receipt of such products;

And provided further, That nothing in this section is to be construed as sanctioning the dissemination of an advertisement of an industry product or products or the personal solicitation of orders therefor unless at the time of such dissemination or solicitation the industry member has a supply of such product or products sufficient to meet normal and reasonably expected orders therefor.

§ 34.4

Size and grade designations.

(a) In the sale, offering for sale, or distribution of industry products, it is an unfair trade practice for an industry member to use any term, designation, number, letter, mark or symbol, as a size or grade designation for any industry product in a manner or under any circumstance having the capacity and tendency or effect of deceiving purchasers or prospective purchasers with respect to the actual size or grade of such products.

(b) Under this section industry members offering lining-out stock for sale shall specify conspicously and accurately the size and age of such stock when failure to do so has the capacity and tendency or effect of deceiving purchasers or prospective purchasers.

(c) Nothing in this section is to be construed as inhibiting the designation of the size or grade of an industry product by use of a size or grade designation for which a standard has been established which is generally recognized in the industry when the identity of such standard is conjunctively disclosed, the product qualifies for the designation under such standard, and no deception of purchasers or prospective purchasers results in the use of such designation.

NOTE: It is the consensus of the industry that the grade and size standard set forth in American Standard For Nursery Stock, as revised April 15, 1956, and approved by American Standards Association, Inc., is generally recognized in the industry, and that use of the size and grade designations therein set forth, in accordance with the requirements of the standard for the designations, in the marketing of industry products to which

such standard relates, will prevent deception and confusion of purchasers and prospective purchasers of such products.

§ 34.5 Deception as to blooming, fruiting, or growing ability.

In the sale, offering for sale, or distribution of industry products, it is an unfair trade practice for any industry member to deceive purchasers or prospective purchasers as to the ability of such products:

(a) To bloom, flower, or fruit within a specified period of time; or

(b) To produce crops within a specified period of time, or to give multiple crops each year, or to produce crops in unfavorable climatic regions; or

(c) To bear fruit through self-pollinization; or

(d) To grow, flourish, and survive irrespective of the climatic conditions, the care exercised in or after planting, or the soil characteristics of the locality in which they are to be planted.

NOTE 1: Under this section, when flower bulbs are of such immaturity as not reasonably to be expected to bloom and flower the first season of their planting, such fact shall be clearly and conspicuously disclosed in all advertisements and sales promotional literature relating to such products: Provided, however, That such disclosure need not be made when sales are confined to nurseries and commercial growers for their use as planting stock.

NOTE 2: Under this section, in order to avoid deception of purchasers and prospective purchasers thereof, when rose bushes have been used in a greenhouse for the commercial production of cut flowers, they shall be tagged or labeled so as to clearly, adequately and conspicuously disclose such fact, and such tags and labels shall be so attached thereto as to remain thereon until consummation of consumer sale. A similar disclosure shall be made in all advertising and sales promotional literature relating to such produtcs. And when, by reason of such previous greenhouse use or their condition at the time of removal therefrom or their handling during or subsequent thereto, there is probability that such rose bushes will not satisfactorily thrive and produce flowers when replanted outdoors, or will satisfactorily thrive and produce flowers outdoors only if given special treatment and attention during and after their replanting, such fact shall also be clearly, conspicuously and nondeceptively disclosed in close conjunction with, and in the same manner as, the aforesaid required disclosure that such products have been used in a greenhouse for the commercial production of cut flowers.

(b) That an industry product conforms to the requirements of any standard when (1) no such standard exists, or (2) no disclosure of the identity of the standard is made, or (3) when the product does not in fact conform to the requirements of the identified standard.

NOTE: Among the types of misrepresentation inhibited by this section is the practice of claiming that an industry product has been approved by a governmental authority or private agency, when in fact the product has not been so approved.

§ 34.7 False claims of membership, deceptive use of seals, etc.

In the sale, offering for sale, or distribution of industry products, it is an unfair trade practice for any industry member:

(a) To represent or claim falsely that he is a member of any association or other organization; or

(b) To use the seal or other insignia of any association or organization without the authorization of such association or organization; or

(c) To use any seal or insignia which is of such form or design, or contains such wording as to simulate the seals or insignia which are issued by an association or organization for use by its members

when such representation, claim, or use has the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers in any material respect.

§ 34.8 Plants collected from the wild

state.

It is an unfair trade practice to sell, offer for sale, or distribute industry products collected from the wild statewithout disclosing that they were collected from the wild state: Provided, however, That if collected plants are grown in the nursery row for at least

one growing season before being marketed, such disclosure is not required. § 34.9 Misrepresentation as to character of business.

(a) In the sale, offering for sale, or distribution of industry products, it is an unfair trade practice for any industry member to represent or imply that he is a grower or propagator of such products or any portion thereof, or that he has any other experience or qualification either relating to the growing or propagation of such products or which enables him to be of assistance to purchasers or prospective purchasers in the selection by them of the kinds or types of products or the placement thereof when such is not the fact, or in any other manner to misrepresent the character, nature, or extent of his business.

NOTE: Among practices subject to the inhibitions of this section are representations by an industry member to the effect that he is a landscape achitect when his training, experience, and knowledge do not qualify him for such representation.

(b) It is also an unfair trade practice for an industry member to use the word "guild", "club", "association", "council”, "society", "foundation", or any other word of similar import or meaning, as part of a trade name, or otherwise, in such a manner or under such circumstances as to indicate or imply that his business is other than a commercial enterprise operated for profit, unless such be true in fact, or so as to deceive purchasers or prospective purchasers in any other material respect.

§ 34.10 Deceptive guarantees.

(a) It is an unfair trade practice to represent, in advertising or otherwise, that a nursery product is "guaranteed" unless the nature and extent of such guarantee is conjunctively disclosed and without deceptively minimizing the terms and conditions relating to the obligations of the guarantor.

(b) It is also an unfair trade practice to use or cause to be used any guarantee in which the obligations of the guarantor are impracticable of fulfillment, or in respect to which the guarantor fails or refuses to observe his liabilities thereunder.

§ 34.11 Deceptive "salesmen wanted" advertisements.

In connection with the promotion or the sale of industry products, it is an

unfair trade practice for an industry member to use or cause to be used any advertisement which, directly or by implication, is false, misleading, or deceptive concerning:

(a) The salary, commission, income, earnings, or other form of remuneration which agents, canvassers, solicitors, sales representatives, or sales-contact personnel may expect to receive; or

(b) The opportunities to become a local manager, district supervisor, field representative, or to start in an established nursery or landscape business; or

(c) Any form of inducement which leads the prospective salesman to believe he will be employed as anything other than a commission agent.

§ 34.12 Misrepresentation with respect to collection of accounts.

It is an unfair trade practice for an industry member to use collection letters, notices, forms, or other communications purporting to emanate from his "legal department," when in fact he does not maintain a legal department for the collection of accounts; or to use the names of fictitious or nonexisting collection agencies, or to represent that collection offices set up by him are independent, bona fide collection agencies, or to use simulated legal forms or other intimidating, threatening or deceptive methods to induce payment.

§ 34.13 Deception as to origin or source of industry products.

(a) It is an unfair trade practice to sell, offer for sale, or advertise an industry product under any representation which has the capacity and tendency or effect of deceiving purchasers or prospective purchasers as to the origin or source of such product (e.g., by use of the term "Holland" to describe bulbs which were grown in the U.S.A.): Provided, however, That when a plant has an accepted common name which incorporates a geographical term and such term has lost its geographical significance as so used, the mere use of such common names does not constitute a misrepresentation as to source or origin (e.g., "Colorado Blue Spruce," "Arizona Cypress," "Black Hills Spruce," "California Privet," "Japanese Barberry," etc.).

(b) It is also an unfair trade practice to advertise, sell, or offer for sale an industry product of foreign origin without adequate and nondeceptive disclosure of