within the purview of the RobinsonPatman Antidiscrimination Act, which act and the application thereunder of this section are subject to the limitations expressed in the amendment to such Robinson - Patman Antidiscrimination Act, which amendment was approved May 26, 1938, and reads as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That nothing in the Act approved June 19, 1936 (Public, Numbered 692, Seventy-fourth Congress, second session), known as the Robinson-Patman Antidiscrimination Act, shall apply to purchases of their supplies for their own use by schools, colleges, universities, public libraries, churches, hospitais, and charitable institutions not operated for profit." (52 Stat. 446; 15 U.S.C. 13c.) [Rule 19]

§ 168.20 Discriminatory returns. It is an unfair trade practice for any member of the industry engaged in commerce 1 to discriminate in favor of one customerpurchaser against another customerpurchaser of industry products, bought from such member of the industry for resale, by contracting to furnish or furnishing in connection therewith, upon terms not accorded to all customer-purchasers on proportionally equal terms, the service or facility whereby such favored purchaser is accorded the privilege of returning products so purchased and receiving therefor credit or refund of puchase price: Provided, however, Nothing in any of the sections in this part shall prohibit or be used to prevent the return of merchandise by purchaser, for credit or refund of purchase price when and because such merchandise has been falsely or improperly labeled, branded, or represented, or when and because

'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.)

169.18 169.19 169.20

Aiding or abetting use of unfair trade practices.

AUTHORITY: §§ 169.1 to 169.20, inclusive, issued under sec. 5, 38 Stat. 719, as amended; 15 U.S.C., 45.

SOURCE: §§ 169.1 to 169.20, inclusive, contained in File No. 21-391, Federal Trade Commission, Aug. 31, 1946, effective 30 days from Aug. 31, 1946, 11 F.R. 9613.

§ 169.1 Deception (general). (a) It is an unfair trade practice to sell, offer for sale, or distribute any industry product, or to promote the sale or use thereof, by any method or under any circumstance or condition which has the capacity and tendency or effect of misleading or deceiving purchasers, prospective purchasers, or the public, as to the utility or efficacy of the product, or the results to be achieved by its use; or as to the quantity to be used, or regarding the grade, composition, ingredients, safety, ease or method of application, origin, or

manufacture of the product; or by any other method or under any circumstance or condition which has the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers in any other material respect.

(b) Under paragraph (a) of this section, no representation shall be made, directly or by implication, that a product has a certain degree or duration of efficacy when such representation is deceptive or misleading because said degree or duration of efficacy has not been established by actual experience or by competent and adequate test or is not capable of being so established.

(c) Under this section, no representation shall be made, directly or by implication, unless such be wholly true and nondeceptive, that any product:

(1) Will be fully effective regardless of: (i) The kind, porosity, or condition of masonry units or masonry structures with which it is integrated or to which it is applied;

(ii) The manner of its integration or application;

(iii) Cracks or other structural failure resulting from ground movement, settlement, or other cause;

(iv) The geographical location of the structure to which it is applied, or the water, moisture, or atmospheric conditions which such structure may encounter; or

(2) Has the approval of any Government agency or official; or

(3) Complies with any Government specification or standard; or

(4) Has been, or is being, substantially used in any specified building, dam, structure, or project; or

(5) Is adequate in any specified quantity for coverage of a specified area of masonry surface, or sufficient as an additive for a certain or stated quantity or masonry mix.

(d) The inhibitions of this section shall apply with respect to every kind or form of advertisement or representation, whether in newspaper, periodical, telephone directory, building materials directory, sales catalogue, sales promotional literature, or radio continuity; on containers or on tags or labels attached thereto; in guarantees, warranties, or sales contracts; by use of depictions, exhibitions, or demonstra

tions; or whether in any other form or through any other means. [Rule 1]

§ 169.2 Deceptive use of representations "waterproof," "waterproofing," etc. (a) In the sale, offering for sale, or distribution of industry products, it is an unfair trade practice to use the word "waterproof," "waterproofing," or any other word or representation of similar import, as descriptive of any industry product unless, when properly integrated with or applied to masonry units or masonry structures, the product will render such units and structures impermeable to, or proof against the passage of, water and moisture throughout the life of such units or structures and under all conditions of water or moisture contactor exposure; subject, however, to the following further provisions of this section:

1

(b) If an industry product will effect such impermeability for a substantial' period of time, although less than, or not known to be as long as, the life of the masonry unit or structure; or,

If for a substantial period of time the industry product will render some but not all types of masonry units or structures impermeable to water and moisture; or,

If for a substantial period of time the industry product will render masonry units or structures impermeable to water under some but not all conditions applicable in the use of the industry product or the function of such masonry units or structures:

Then the words "waterproof," "waterproofing," or representations of like import, may be used as descriptive of said industry product, Provided, Such words, terms, and representations are accompanied and qualified, in immediate con

1 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.

junction and in accordance with the following provisions, by a clear, conspicuous, and nondeceptive statement of limitations or disclosure showing the respective applicable limitations (i) of the period of time impermeability will endure, (ii) of the type or kind of masonry unit or structure in which the product will produce such impermeability, and (iii) of the other applicable conditions which need be present or absent in order for said result of impermeability to be achieved and to endure during said specified period of time; And provided further, That in the use of any of said words, terms, or representations in pursuance of the foregoing provisions of this section, the same are not used with such context, or advertising or labeling makeup, or in such other circumstance, as to be deceptive or misleading.

(1) Said accompanying and qualifying statement of limitations or disclosure shall not be deceptively minimized, remotely placed, obscured, or otherwise rendered inconspicuous in advertising matter or labeling, nor shall it be intermingled with such context or so fashioned in advertising or labeling make-up as to produce a confusing or misleading tendency or effect.

(2) Said statement of limitations or disclosure as to period of time impermeability will endure may be stated, when set forth nondeceptively, as a certain approximate minimum of years or months, which shall be deemed sufficiently accurate if such time is stated as being the approximate minimum and is shown to be accurate within reasonable tolerances; or said period of time may be stated in accordance with a reasonable average determined on the basis of actual experience in the use of the product under the various conditions which are or may be encountered, or in the event actual experience is not available and instances of failure of the product are unknown, the statement of approximate time limitation may be based upon adequate and scientifically recognized tests made under specified conditions and for the purpose of determining the length of time impermeability resulting from the product will endure. Said period of time may also be stated by showing a certain maximum, as, for example, "Will Give Protection Against Water and Moisture Up To Five Years," or by stating that impermeability will be afforded from a cer

tain minimum to a certain maximum period, or by stating that impermeable results cannot be assured beyond a certain stated period, Provided, Such maximum period is applicable in respect of the different types of uses of the product and is within a reasonable tolerance, And provided further, That the maximum period stated is generally applicable and not limited to isolated or exceptional uses or conditions unless it be fully disclosed that such maximum period is only applicable in such isolated or exceptional uses or conditions.

(3) Where the product will produce impermeability for a substantial period of time in some but not all masonry units or structures, said statement of limitations or disclosure shall also show the kind of masonry units or structures as to which the product is limited in producing impermeability or show the kind of masonry units or structures upon which the product will not produce impermeability, as, for example:

For House Basements Only.

For Home Foundations Other Than Cinder Block.

(4) Said statement of limitations or disclosure shall also show whether the product is to be used only for abovegrade or below-grade work (as, for example, "For Above-grade Brick Walls"), unless the product is such as to produce the impermeability for the time specified regardless of whether it is used above grade or below grade.

(5) Said statement of limitations or disclosure shall also show such other conditions or circumstances which will prevent the industry product from producing the result of impermeability during the specified time in masonry units or structures coming within the same general class of those for which the product is marketed unless the industry product is such as to produce the impermeability for the time specified regardless of any such conditions or circumstances.

(c) Use of the word "waterproofing" in name of corporation or company. Nothing in this part shall be construed as prohibiting use of the word "waterproofing" in the name of a corporation or company engaged in the business of manufacturing or marketing industry products or materials in conformity with the regulations in this part: Provided,

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

1 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]

1

§ 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.2

"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.