materials for upkeep purposes, the seller should:

(a) Clearly and conspicuously define the nature and extent of basic upkeep service. Basic upkeep service should include only those parts of upkeep which are absolutely essential and without which a set cannot remain functional (this might include such parts as pocket part supplements, replacement pages, releases and inserts, advance sheets, and replacement, revised, recompiled or split volumes); and

(b) Make available for purchase such basic upkeep service on an automatic shipment basis without requiring the purchase of other additional upkeep services whether on an automatic basis or otherwise.

NOTE 1: Nothing in this section is meant to preclude a seller from offering to buyers the option of ordering and receiving all parts of upkeep on an automatic basis, including basic supplementation and all other extra parts of supplementation, or any other method

of upkeep such as alternate year supplementation, as long as other requirements of this section are met.

NOTE 2: The purpose of this section is to furnish the seller and buyer with a clear understanding of what is being ordered. There has been dissension and confusion in the lawbook industry as to what constitutes upkeep service and as to what the customer expects to receive or thinks he ordered under the upkeep provision, and as to which parts or units of the upkeep service the customer considers necessary or unnecessary for his particular requirements.

NOTE 3: Where a customer chooses to purchase individual parts of the upkeep service on a non-automatic basis [see paragraph (b) of this section], the total price for each part so ordered should not exceed the cost of such parts when ordered automatically [see Note 1 of this section], unless any increased charges are based upon the actual increased costs to the seller directly attributable to such sale and/or delivery.

NOTE 4: The Federal Trade Commission Act will be enforced in accordance with Section 3009 of the Postal Reorganization Act which designates that “(a) *** the mailing of unordered merchandise or of communications prohibited by paragraph (c) of this section constitutes an unfair method of competition and an unfair trade practice. * * *

"(b) Any merchandise mailed in violation of paragraph (a) of this section, or within the exceptions contained therein, may be treated as a gift by the recipient, who shall have the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender. All such

merchandise shall have attached to it a clear and conspicuous statement informing the recipient that he may treat the merchandise as a gift to him and has the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender.

"(c) No mailer of any merchandise mailed in violation of paragraph (a) of this section, or within the exceptions contained therein, shall mail to any recipient of such merchandise a bill for such merchandise or any dunning communications." [Guide 14]

§ 256.15 Billing practices.

(a) Sellers of industry products should notify all customers in a clear and conspicuous manner:

(1) To mark conspicuously their account numbers (if any) or other appropriate identifying data on all correspondence and payments, including checks, sent by customers to the seller;

(2) That, upon request for clarification of an account, any customer may receive a statement of accounts, showing each purchase, payment or credit itemized for the current or all pertinent, preceding months;

(3) That, where the seller can apply payments to specific items under its billing procedures, to indicate or identify to the seller or payee the item or items to which any payment is to be applied.

(b) The publisher or seller of industry products should:

(1) When receiving communications showing account numbers, have the responsibility of applying all correspondence and payments to the correct account, and where there is any question, notify the customer before entering the pertinent data into the computer system;

(2) Provide a statement of accounts when requested by the customer;

(3) Where seller can apply payments to specific items under its billing procedures, apply payments or credits as designated by the buyer or payor.

(c) The seller of industry products, in oral or written communications with the buyer, should not use fictitious names, but should use names of live persons who are actively participating in the business.

(d) Billing statements to purchasers of industry products should show:

(1) Date and customer's account number, if any;

(2) Invoice numbers or, where items are listed, a clear and readable description of each item or unit. If abbreviations are used which are not readily understandable, the statement should have thereon or attached thereto a clear interpretation of said abbreviations (e.g., a table);

(3) A price for each item, or invoice totals, or the total of invoice totals;

(4) Penalty, interest, or carrying charges, if any, clearly and separately identified;

(5) Purchases sent on approval, if any, clearly and separately identified. (e) All industry product invoices should:

(1) Be dated, numbered or adequately identified, and should show customer's account number, if any;

(2) Show a clear and readable description of each item or unit. If abbreviations are used which are not readily understandable, the invoice should have thereon or attached thereto a clear interpretation of said abbreviations;

(3) Show a price for each item, and clearly state terms of sale and amount of discount, if any;

(4) Clearly show the time period for approval orders, by showing specific opening and termination dates.

NOTE: This section is meant to suggest some basic information that should be provided for the billing process although the seller may prefer to use some other system or method which furnishes essentially the same information as provided by this section. Further, this section does not relieve an industry member of his responsibilities to comply with the Fair Credit Billing Act, 15 U.S.C. 1601, and law book sellers should note with particularity section 161 of that Act dealing with "Correction of Billing Errors". [Guide 15]

$256.17 Misrepresentations (general).

An industry product should not be advertised, published or otherwise represented in any manner which may have the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers concerning the grade, quality, material, size, contents, authorship, editorship, use, value, price, origin, preparation, manufacture or date of publication or copyright of any industry product or of any supplementation thereto, or the current or up-to-date character thereof, or concerning any service offered in connection therewith, or in any other material respect. [Guide 17]

NOTE. If a fixed fee per period is charged for a current topic reporting upkeep service which is supplemented monthly or more frequently, §§ 256.2, 256.3, 256.13(a) and 256.14 do not apply.

PART 259-GUIDE CONCERNING FUEL ECONOMY ADVERTISING FOR NEW AUTOMOBILES

Sec.

259.1 Definitions.

259.2 Advertising disclosures. AUTHORITY: 15 U.S.C. 41-58.

§ 259.1 Definitions.

For the purposes of this part, the following definitions shall apply:

(a) New automobile. Any passenger automobile or light truck for which a fuel economy label is required under the Energy Policy and Conservation Act (42 U.S.C. 6201 et seq.) or rules promulgated thereunder, the equitable or legal title to which has never been transferred by a manufacturer, distributor, or dealer to an ultimate purchaser. The term manufacturer shall mean any person engaged in the manufacturing or assembling of new automobiles, including any person importing new automobiles for resale and any person who acts for and is under control of such manufacturer, assembler, or importer in connection with the distribution of new automobiles. The term dealer shall mean any person, resident or located in the United States or any territory thereof, engaged in the sale or distribution of new automobiles to

the ultimate purchaser. The term ultimate purchaser means, for purposes of this part, the first person, other than a dealer purchasing in his or her capacity as a dealer, who in good faith purchases such new automobile for purposes other than resale, including a person who leases such vehicle for his or her personal use.

(b) Estimated city mpg. The gasoline consumption or mileage of new automobiles as determined in accordance with the city test procedure employed and published by the U.S. Environmental Protection Agency as described in 40 CFR 600.209-85 and expressed in miles-per-gallon, to the nearest whole mile-per-gallon, as measured, reported, published, or accepted by the U.S. Environmental Protection Agency.

(c) Estimated highway mpg. The gasoline consumption or mileage of new automobiles as determined in accordance with the highway test procedure employed and published by the U.S. Environmental Protection Agency as described in 40 CFR 600.209-85 and expressed in miles-per-gallon, to the nearest whole mile-per-gallon, as measured, reported, published, or accepted by the U.S. Environmental Protection Agency.

(d) Vehicle configuration. The unique combination of automobile features, as defined in 40 CFR 600.002-85(24).

(e) Estimated in-use fuel economy range. The estimated range of city and highway fuel economy of the particular new automobile on which the label is affixed, as determined in accordance with procedures employed by the U.S. Environmental Protection Agency as described in 40 CFR 600.311 (for the appropriate model year), and expressed in miles-per-gallon, to the nearest whole mile-per-gallon, as measured, reported or accepted by the U.S. Environment Protection Agency.

(f) Range of estimated fuel economy values for the class of new automobiles. The estimated city and highway fuel economy values of the class of automobile (e.g., compact) as determined by the U.S. Environmental Protection Agency pursuant to 40 CFR 600.315 (for the appropriate model year) and expressed in miles-per-gallon, to the nearest whole mile-per-gallon.

[60 FR 56231, Nov. 8, 1995]

§ 259.2 Advertising disclosures.

(a) No manufacturer or dealer shall make any express or implied representation in advertising concerning the fuel economy of any new automobile1 unless such representation is accompanied by the following clear and conspicuous disclosures:

(1) If the advertisement makes:

(i) Both a city and a highway fuel economy representation, both the "estimated city mpg" and the "estimated highway mpg" of such new automobile,2 must be disclosed;

(ii) A representation regarding only city or only highway fuel economy, only the corresponding EPA estimate must be disclosed; 3

(iii) A general fuel economy claim without reference to either city or highway, or if the representation refers to any combined fuel economy number, the "estimated city mpg" must be disclosed; 4 and

(2) That the U.S. Environmental Protection Agency is the source of the "estimated city mpg" and "estimated highway mpg" and that the numbers are estimates.5

1 The Commission will regard as an express or implied fuel economy representation one which a reasonable consumer, upon considering the representation in the context of the entire advertisement, would understand as referring to the fuel economy performance of the vehicle or vehicles advertised.

2 For purposes of §259.2(a), the "estimated city mpg" and the "estimated highway mpg" must be those applicable to the specific nameplate being advertised. Fuel economy estimates assigned to "unique nameplates" (see 40 CFR 600.207-86(a)(2)) apply only to such unique car lines. For example, if a manufacturer has a model named the "XZA" that has fuel economy estimates assigned to it and a derivative model named the "EconoXZA" that has separate, higher fuel economy estimates assigned to it, these higher numbers assigned to the "Econo-XZA" cannot be used in advertisements for the "XZA."

3 For example, if the representation clearly refers only to highway fuel economy, only the "estimated highway mpg" need be disclosed.

4 Nothing in this section should be construed as prohibiting disclosure of both the city and highway estimates.

5 The Commission will regard the following as the minimum disclosure necessary to comply with §259.2(a)(2), regardless of the

(b) If an advertisement for a new automobile cites:

(1) The "estimated in-use fuel economy range," the advertisement must state with equal prominence both the upper and lower number of the range, an explanation of the meaning of the numbers (i.e., city mpg range or highway mpg range or both), and that the U.S. Environmental Protection Agency is the source of the figures.

(2) The "range of estimated fuel economy values for the class of new automobiles" as a basis for comparing the fuel economy of two or more automobiles, such comparison must be made to the same type of range (i.e., city or highway).6

(c) Fuel economy estimates derived from a non-EPA test may be disclosed provided that:

(1) The advertisement also discloses the "estimated city mpg" and/or the "estimated highway mpg," as required by §259.2(a), and the disclosure required by $259.2(a), and gives the "estimated city mpg" and/or the "estimated highway mpg" figure(s) substantially more prominence than any other estimate;7

media in which the advertisement appears: "EPA estimate(s)."

For television, if the estimated mpg appears in the video, the disclosure must appear in the video; if the estimated mpg is audio, the disclosure must be audio.

6 For example, an advertisement could not state that "according to EPA estimates new automobiles in this class get as little as X mpg (citing a figure from the city range) while EPA estimates that this automobile gets X + mpg (citing the EPA highway estimates or a number from the EPA estimated in-use fuel economy highway range for the automobile).

"The Commission will regard the following as constituting "substantially more prominence:"

For television only: If the estimated city and/or highway mpg and any other mileage estimate(s) appear only in the visual portion, the estimated city and/or highway mpg must appear in numbers twice as large as those used for any other estimate, and must remain on the screen at least as long as any other estimate. If the estimated city and highway mpg appear in the audio portion, visual broadcast of any other estimate must be accompanied by the simultaneous, at least equally prominent, visual broadcast of the estimated city and/or highway mpg. Each visual estimated city and highway mpg must be broadcast against a solid color back

provided, however, for radio and television advertisements in which any other estimate is used only in the audio, equal prominence must be given the "estimated city mpg" and/or the "estimated highway mpg" figure(s); 8

(2) The source of the non-EPA test is clearly and conspicuously identified;

(3) The driving conditions and variables simulated by the test which differ from those used to measure the "estimated city mpg" and/or the "estimated highway mpg," and which result in a change in fuel economy, are clearly and conspicuously disclosed. Such conditions and variables may include, but are not limited to, road or dynamometer test, average speed, range of speed, hot or cold start, and temperature; and

(4) The advertisement clearly and conspicuously discloses any distinctions in "vehicle configuration" and

ground that contrasts easily with the color used for the numbers when viewed on both color and black and white television.

For print only: The estimated city and/or highway mpg must appear in clearly legible type at least twice as large as that used for any other estimate. Alternatively, if the estimated city and highway mpg appear in type of the same size as such other estimate, they must be clearly legible and conspicuously circled. The estimated city and highway mpg must appear against a solid color, contrasting background. They may not appear in a footnote unless all references to fuel economy appear in a footnote.

8 The Commission will regard the following as constituting equal prominence. For radio and television when any other estimate is used in the audio: The estimated city and/or highway mpg must be stated, either before or after each disclosure of such other estimate at least as audibly as such other estimate.

For dynamometer tests any difference between the EPA and non-EPA tests must be disclosed. For in-use tests, the Commission realizes that it is impossible to duplicate the EPA test conditions, and that in-use tests may be designed to simulate a particular driving situation. It must be clear from the context of the advertisement what driving situation is being simulated (e.g., cold weather driving, highway driving, heavy load conditions). Furthermore, any driving or vehicle condition must be disclosed if it is significantly different from that which an appreciable number of consumers (whose driving condition is being simulated) would expect to encounter.

other equipment affecting mileage performance (e.g., design or equipment differences which distinguish subconfigurations as defined by EPA) between the automobiles tested in the non-EPA test and the EPA tests.

[60 FR 56231, Nov. 8, 1995]

PART 260-GUIDES FOR THE USE OF ENVIRONMENTAL MARKETING

CLAIMS

Sec.

260.1 Statement of purpose.

260.2 Scope of guides.

260.3 Structure of the guides.

260.4 Review procedure.

260.5 Interpretation and substantiation of

environmental marketing claims.

260.6 General principles.

260.7 Environmental marketing claims. 260.8 Environmental assessment.

AUTHORITY: 15 U.S.C. 41-58.

SOURCE: 61 FR 53316, Oct. 11, 1996, unless otherwise noted.

$260.1 Statement of purpose.

The guides in this part represent administrative interpretations of laws administered by the Federal Trade Commission for the guidance of the public in conducting its affairs in conformity with legal requirements. These guides specifically address the application of Section 5 of the FTC Act to environmental advertising and marketing practices. They provide the basis for voluntary compliance with such laws by members of industry. Conduct inconsistent with the positions articulated in these guides may result in corrective action by the Commission under Section 5 if, after investigation, the Commission has reason to believe that the behavior falls within the scope of conduct declared unlawful by the statute.

§ 260.2 Scope of guides.

These guides apply to environmental claims included in labeling, advertising, promotional materials and all other forms of marketing, whether asserted directly or by implication, through words, symbols, emblems, logos, depictions, product brand names, or through any other means. The guides apply to any claim about the environmental attributes of a product or

package in connection with the sale, offering for sale, or marketing of such product or package for personal, family or household use, or for commercial, institutional or industrial use.

Because the guides are not legislative rules under Section 18 of the FTC Act, they are not themselves enforceable regulations, nor do they have the force and effect of law. The guides themselves do not preempt regulation of other federal agencies or of state and local bodies governing the use of environmental marketing claims. Compliance with federal, state or local law and regulations concerning such claims, however, will not necessarily preclude Commission law enforcement action under Section 5.

§ 260.3 Structure of the guides.

The guides are composed of general principles and specific guidance on the use of environmental claims. These general principles and specific guidance are followed by examples that generally address a single deception concern. A given claim may raise issues that are addressed under more than one example and in more than one section of the guides. In many of the examples, one or more options are presented for qualifying a claim. These options are intended to provide a "safe harbor" for marketers who want certainty about how to make environmental claims. They do not represent the only permissible approaches to qualifying a claim. The examples do not illustrate all possible acceptable claims or disclosures that would be permissible under Section 5. In addition, some of the illustrative disclosures may be appropriate for use on labels but not in print or broadcast advertisements and vice versa. In some instances, the guides indicate within the example in what context or contexts a particular type of disclosure should be considered.

§ 260.4 Review procedure.

The Commission will review the guides as part of its general program of reviewing all industry guides on an ongoing basis. Parties may petition the Commission to alter or amend these