§ 250.9 Misuse of the terms "floor sample", "discontinued model”, etc.

a

(a) Representations that furniture is "floor sample", "demonstration piece", etc., should not be used to describe "trade-in", repossessed, rented, or any furniture except that displayed for inspection by prospective purchasers at the place of sale for the purpose of determining their preference and its suitability for their use.

(b) Furniture should not be described as "discontinued" or "discontinued model" unless the manufacturer has in fact discontinued its manufacture or the industry member offering it for sale will discontinue offering it entirely after clearance of his existing inventories of furniture so described. [Guide 9]

§ 250.10 Passing off through imitation or simulation of trademarks, trade names, etc.

Members of the industry should not mislead or deceive purchasers by passing off the products of one industry member as and for those of another through the imitation or simulation of trademarks, trade names, brands, or labels. [Guide 10]

§ 250.11 Misrepresentation as to character of business.

Members of the industry should not represent, directly or by implication, in advertising or otherwise, that they produce or manufacture products of the industry, or that they own or control a factory making such products, when such is not the fact, or that they are a manufacturer, wholesale distributor or a wholesaler when such is not the fact, or in any other manner misrepresent the character, extent, or type of their business. [Guide 11]

§ 250.12 Commercial bribery.

Members of the industry should not give, or offer to give, or permit or cause to be given, directly or indirectly, money or anything of value to agents, employees, or representatives 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 or contracting to deal with competitors. [Guide 12]

§ 250.13 Other parts in this title 16 applicable to this industry.

The Commission has adopted Guides Against Deceptive Pricing, part 233, Guides Against Deceptive Advertising of Guarantees, part 239, and Guides Against Bait Advertising, part 238, all of which have general application and furnish additional guidance for members of the Household Furniture Industry. Members of this industry should comply with those parts.

PART 251-GUIDE CONCERNING USE OF THE WORD "FREE" AND SIMILAR REPRESENTATIONS

§ 251.1 The guide.

(a) General. (1) The offer of "Free" merchandise or service is a promotional device frequently used to attract customers. Providing such merchandise or service with the purchase of some other article or service has often been found to be a useful and valuable marketing tool.

(2) Because the purchasing public continually searches for the best buy, and regards the offer of "Free" merchandise or service to be a special bargain, all such offers must be made with extreme care so as to avoid any possibility that consumers will be misled or deceived. Representative of the language frequently used in such offers are "Free", "Buy 1-Get 1 Free", "2-for1 Sale", "50% off with purchase of Two", "1¢ Sale", etc. (Related representations that raise many of the same questions include CentsOff", "Half-Price Sale", "1⁄2 Off", etc. See the Commission's "Fair Packaging and Labeling Regulation Regarding 'Cents-Off' and Guides Against Deceptive Pricing.")

(b) Meaning of "Free". (1) The public understands that, except in the case of introductory offers in connection with

the sale of a product or service (See paragraph (f) of this section), an offer of "Free" merchandise or service is based upon a regular price for the merchandise or service which must be purchased by consumers in order to avail themselves of that which is represented to be "Free". In other words, when the purchaser is told that an article is "Free" to him if another article is purchased, the word "Free" indicates that he is paying nothing for that article and no more than the regular price for the other. Thus, a purchaser has a right to believe that the merchant will not directly and immediately recover, in whole or in part, the cost of the free merchandise or service by marking up the price of the article which must be purchased, by the substitution of inferior merchandise or service, or otherwise.

(2) The term regular when used with the term price, means the price, in the same quantity, quality and with the same service, at which the seller or advertiser of the product or service has openly and actively sold the product or service in the geographic market or trade area in which he is making a "Free" or similar offer in the most recent and regular course of business, for a reasonably substantial period of time, i.e., a 30-day period. For consumer products or services which fluctuate in price, the "regular" price shall be the lowest price at which any substantial sales were made during the aforesaid 30-day period. Except in the case of introductory offers, if no substantial sales were made, in fact, at the "regular" price, a "Free" or similar offer would not be proper.

(c) Disclosure of conditions. When making "Free" or similar offers all the terms, conditions and obligations upon which receipt and retention of the "Free" item are contingent should be set forth clearly and conspicuously at the outset of the offer so as to leave no reasonable probability that the terms of the offer might be misunderstood. Stated differently, all of the terms, conditions and obligations should appear in close conjunction with the offer of "Free" merchandise or service. For example, disclosure of the terms of the offer set forth in a footnote of an advertisement to which reference is made

by an asterisk or other symbol placed next to the offer, is not regarded as making disclosure at the outset. However, mere notice of the existence of a "Free" offer on the main display panel of a label or package is not precluded provided that (1) the notice does not constitute an offer or identify the item being offered "Free", (2) the notice informs the customer of the location, elsewhere on the package or label, where the disclosures required by this section may be found, (3) no purchase or other such material affirmative act is required in order to discover the terms and conditions of the offer, and (4) the notice and the offer are not otherwise deceptive.

(d) Supplier's responsibilities. Nothing in this section should be construed as authorizing or condoning the illegal setting or policing of retail prices by a supplier. However, if the supplier knows, or should know, that a "Free" offer he is promoting is not being passed on by a reseller, or otherwise is being used by a reseller as an instrumentality for deception, it is improper for the supplier to continue to offer the product as promoted to such reseller. He should take appropriate steps to bring an end to the deception, inlcuding the withdrawal of the "Free" offer.

(e) Resellers' participation in supplier's offers. Prior to advertising a "Free" promotion, a supplier should offer the product as promoted to all competing resellers as provided for in the Commission's "Guides for Advertising Allowances and Other Merchandising Payments and Services." In advertising the "Free" promotion, the supplier should identify those areas in which the offer is not available if the advertising is likely to be seen in such areas, and should clearly state that it is available only through participating resellers, indicating the extent of participation by the use of such terms as "some", "all", "a majority", or “a few", as the case may be.

(f) Introductory offers. (1) No "Free" offer should be made in connection with the introduction of a new product or service offered for sale at a specified price unless the offeror expects, in good faith, to discontinue the offer after a limited time and to commence selling

the product or service promoted, separately, at the same price at which it was promoted with the "Free" offer.

(2) In such offers, no representation may be made that the price is for one item and that the other is "Free" unless the offeror expects, in good faith, to discontinue the offer after a limited time and to commence selling the product or service promoted, separately, at the same price at which it was promoted with a "Free" offer.

(g) Negotiated sales. If a product or service usually is sold at a price arrived at through bargaining, rather than at a regular price, it is improper to represent that another product or service is being offered "Free" with the sale. The same representation is also improper where there may be a regular price, but where other material factors such as quantity, quality, or size are arrived at through bargaining.

(h) Frequency of offers. So that a "Free" offer will be special and meaningful, a single size of a product or a single kind of service should not be advertised with a "Free" offer in a trade area for more than 6 months in any 12month period. At least 30 days should elapse before another such offer is promoted in the same trade area. No more than three such offers should be made in the same area in any 12-month period. In such period, the offeror's sale in that area of the product in the size promoted with a "Free" offer should not exceed 50 percent of the total volume of his sales of the product, in the same size, in the area.

(i) Similar terms. Offers of "Free" merchandise or services which may be deceptive for failure to meet the provisions of this section may not be corrected by the substitution of such similar words and terms as "gift", "given without charge", "bonus", or other words or terms which tend to convey the impression to the consuming public that an article of merchandise or service is "Free".

(38 Stat. 717, as amended; 15 U.S.C. 41-58) [36 FR 21517, Nov. 10, 1971]

(a) Industry products. For the purposes of this part the term industry products means and includes all pillows, cushions, comforters, sleeping bags, wearing apparel, and similar products which are wholly or partially filled with feathers or down, and all bulk stocks of processed feathers or down intended for use or used in the manufacture of such products.

(b) Industry members. All persons, firms, corporations, and organizations engaged in the processing, manufacture, distribution, or marketing of any industry product are considered to be industry members.

(c) Filling material. Means the contents of an industry product including feathers and down of any kind or type.

(d) Down. Means the undercoating of waterfowl, consisting of clusters of light, fluffy filaments, i.e., barbs, growing from the quill point but without any quill shafts.

(e) Plumules. Means downy waterfowl plumage with under developed soft and flaccid quill with barbs indistinguishable from those of down.

(f) Down fibers. Means the detached barbs from down and plumules and the detached barbs from the basal end of waterfowl quill shaft which are indistinguishable from the barbs of down.

(g) Feathers. Means the plumage or out-growth forming the contour and external covering of fowl which are whole in structure and which have not been processed in any manner other than by washing, dusting, chemical treatment, and sanitizing.

(h) Waterfowl feathers. Means feathers derived from ducks and geese.

(i) Nonwaterfowl feathers or landfowl feathers. Means feathers derived from chickens, turkeys, and other landfowl.

(j) Quill feathers. Means feathers which are over 4 inches in length or which have a quill point exceeding sixsixteenths of an inch in length.

(k) Feather fiber. Means the detached barbs of feathers which are not joined or attached to each other.

(1) Crushed feathers. Means feathers which have been processed by a curling, crushing, or chopping machine which has changed the original form of the feathers without removing the quill. The term also includes the fiber resulting from such processing.

(m) Damaged feathers. Means feathers which have been broken, damaged by insects, or otherwise materially injured.

(n) Residue. Means quill pith, quill fragments, trash or foreign matter. [Guide 1]

$253.2 Misrepresentation in general.

(a) An industry product should not be labeled, advertised, or otherwise represented in any manner which may have the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers concerning its filling material, covering, composition, quality, processing, testing, manufacture, durability, weight, maintenance, cleanliness, construction, warmth, moisture resistance, color, guarantee, origin, price, or any other feature of such product.

size,

(b) Coverings of industry products should be labeled in accordance with the requirements of the Textile Fiber Products Identification Act and the Wool Products Labeling Act. [Guide 2]

§ 253.3 Use of trade names, symbols, depictions, etc.

A trade name, symbol, depiction, or any other kind of representation, should not be used in labeling, in ad

vertising, or in any other kind of promotion relating to an industry product, when such representation has the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers into believing that the product is composed:

(a) In whole or in part of feathers and down, or feathers, or down, when such is not the fact; or

(b) In whole or in part of feathers or down from a particular type of fowl when such is not the fact; or

(c) That the product has been given chemical treatment to improve its physical or chemical properties when such is not the fact. [Guide 3]

$253.4 Misuse of the term "Tan-O-QuilQM".

(a) The term Tan-O-Quil-QM or any words or phrases suggestive thereof should not be used in any labeling or advertising respecting an industry product in any manner which may have the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers into believing that the product or any of its filling material has been treated by the TanO-Quil-QM process unless in fact all of the filling material in that product has been treated by the Tan-O-Quil-QM process developed by the Clothing and Organic Materials Laboratory, U.S. Army Natick Laboratories, Natick, Mass., in accordance with applicable U.S. Government specifications (this process is described in Technical Report 69-37-CM, "Tan-O-Quil-QM Treatment for Feathers and Down," dated August 1968).

(b) When the Tan-O-Quil-QM treatment has been applied to all of the filling materials contained in an industry product, the term "Tan-O-Quil-QM” may be used on the label, and the label should include a statement that the product has been so treated in accordance with the applicable U.S. Government specification showing the number thereof. [Guide 4]

§ 253.5 Disclosure of filling material.

(a) Labeling. An industry product should be labeled as to the kind or type of filling material contained therein and when the filling material consists of a mixture of more than one kind or

type, then the proportion of each should be disclosed in the order of predominance, the largest proportion first.

(b) Advertising. Disclosure of the kind or type of filling material contained in an industry product need not be made in advertising unless in the absence of disclosure a purchaser or prospective purchaser may likely be deceived. Thus, if advertising contains any representation, whether affirmative or implied, concerning the nature of the filling material, then disclosure should be made in accordance with paragraph (a) of this section.

(c) Bulk stocks. Invoices pertaining to bulk stocks of processed feathers and down should disclose the kind or type of feathers and down contained therein, and if more than one kind or type is contained in the bulk stock then the proportion of each should be disclosed in the order of predominance, the largest proportion first.

(d) Manner and form of disclosures. The disclosures described in paragraphs (a), (b), and (c) of this section should be made in accordance with the following instructions.

(1) Disclosures with respect to the kind or type of feathers and down by use of any of the terms listed and defined above will be considered proper provided such products conform to the definitions set forth for such term, except that if the term nonwaterfowl or landfowl is used, it should be accompanied by the name of the fowl from which the products were obtained, e.g., "chicken" or "turkey."

(2) Disclosures made in accordance with this part should be clear and conspicuous, and labels bearing such disclosures should be attached to the product with sufficient permanency so as to remain thereon until after sale to the ultimate purchaser.

(3) The proportion or percentage of a particular kind or type of feathers or down in an industry product should be determined by the relationship between the avoirdupois weight that the particular kind or type bears to the total avoirdupois weight of the filling material in the product. [Guide 5]

(c) Percentage claims. An industry member should not misrepresent directly or indirectly the percentage of down contained in an industry product. Illustratively,

(1) A product should not be designated as "100 percent down," "all down," "pure down," or by other terms of similar import unless it in fact contains only down without regard to the tolerance set forth in this section.

(2) A product should not be represented to contain a certain percentage of feathers or down unless it in fact contains the stated percentage with due regard to the tolerances set forth in this section.

(d) Designation of species. An industry product may be designated by the name of a waterfowl species if a minimum of 90 percent of the waterfowl plumage contained therein is of that species.

(e) Testing. Tests to determine the composition of the filling material in an industry product should be conducted in accordance with Federal Standard 148a, dated December 10, 1964, entitled "Classification, Identification, and Testing of Feather Filling Material."