FEDERAL TRADE COMMISSION 16 CFR PART 500 REGULATIONS UNDER SECTION 4 OF THE AGENCY: Federal Trade Commission. ACTION: Final rule. SUMMARY: The Federal Trade Commission (the "Commission" or "FTC") amends its regulations issued under Section 4 of the Fair Packaging and Labeling Act (FPLA) to require the use of the units of both the customary inch/pound measurement system and the metric measurement system in the net quantity statement for certain consumer commodities. This action is being taken to implement 1992 amendments to the FPLA, which require such dual measurement system disclosure. EFFECTIVE DATE: February 14, 1994. FOR FURTHER INFORMATION CONTACT: Stephen C. Ecklund, Investigator, Division of Enforcement, Federal Trade Commission, 600 Pennsylvania Ave., NW, Washington, D.C. 20580, (202) 326-2841. SUPPLEMENTARY INFORMATION: Statement of Basis and Purpose I. Introduction In 1967, Congress enacted the Fair Packaging and Labeling Act (15 U.S.C. 1451 et seq.) (FPLA). Congress declared that packages and their labels should be marked to enable consumers to obtain accurate information as to the quantity of the contents and to facilitate value comparisons. To effectuate its policy of providing consumers accurate quantity information on commodity labels, Congress in the FPLA set out general disclosure requirements and delegated to various agencies, including the FTC, the duty of promulgating regulations. The FTC in 1968 published regulations that provided detailed guidance to industry on what to include in statements of identity of products; in the identification of manufacturers, packers, or distributors; and in declarations of net quantities (33 FR 4718, March 19, 1968; 16 CFR Part 500). The 1967 FPLA specified that the quantity disclosures be made in the customary American inch/pound system of measurement. The FTC's implementing regulations thus required use of the inch/pound system of measurement. The FTC regulations, however, also permitted the use of the metric system of measurement as an additional net quantity disclosure (16 CFR Sec. 500.21). In 1992, Congress amended the FPLA to require that the quantity disclosure on labels of consumer commodities be in both the SI metric system and the customary inch/pound system of measurement. This amendment is consistent with the overall policy that the metric system is the preferred system of weights and measures for commerce in the United States (Omnibus Trade and Competitiveness Act, P. L. 100-418, 15 U.S.C. 205b). Because of the metric amendments to the FPLA, the FTC has conducted this rulemaking to amend its regulations to reflect the requirement for dual disclosure. This rulemaking has been conducted pursuant to the Commission Rules prescribing special procedures for the promulgation and amendment of FPLA regulations. (16 CFR Part 1, Subpart C.) Pursuant to these procedures, interested parties were afforded the opportunity to participate in the proceeding through the submission of written data, views, or arguments. On August 17, 1993, the Commission published a Notice of Proposed Rulemaking (NPR) in the Federal Register that sought comment on the proposed dual disclosure amendments to the Commission's FPLA regulations.(1) The Commission also sought comments on its consideration of certain statutory and regulatory requirements relating to this rulemaking, such as the National Environmental Policy Act of 1969 (42 U.S.C. 4321). In the NPR, the Commission tentatively concluded that the proposed amendments were not "major" rule amendments within the meaning of that statute; were not rules requiring the "collection of information" within the meaning of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); and were in compliance with the metric usage requirements of the Metric Conversion Act (15 U.S.C. 205b). Further, as part of its ongoing regulatory review of existing and proposed regulations, the Commission sought comment about the overall costs and benefits of the regulations promulgated under the FPLA. Lastly, the Commission, based upon information currently available, stated its belief that it is unlikely that the proposed amendments would have a significant economic impact on a substantial number of small firms. However, given the uncertainty on the question, the Commission published an initial regulatory analysis under the Regulatory Flexibility Act (5 U.S.C. 603-604) and requested public comment on the potential costs of the amendments. The Commission received 20 timely written comments, which are summarized in Part III of this notice. The amendments that the Commission is adopting today are also discussed in Part III. The text of the amendments appears at the end of this notice. II. Background A. The Fair Packaging and Labeling Act The Fair Packaging and Labeling Act is designed to prevent the use of unfair or deceptive methods of packaging and labeling of consumer commodities. The FPLA states that it shall be unlawful for persons to sell or distribute commodities whose labels do not conform "to the provisions of this Act and of regulations promulgated under the authority of this Act." (15 U.S.C. 1452.) The main requirements of the FPLA are that the label on a package disclose the identity of the commodity; the name and place of business of the manufacturer, packer, or distributor of the commodity; and the net quantity of contents in terms of weight, measure, or numerical count. (15 U.S.C. 1453.)
In the FPLA, Congress has established a system of divided authority for implementation and enforcement. The authority to promulgate and enforce regulations with regard to foods, drugs, devices, or cosmetics is vested in the United States Food and Drug Administration. (15 U.S.C. 1453(a), 15 U.S.C. 1456(a).) With respect to any other consumer commodity, authority is vested in the FTC (15 U.S.C. 1454(a), 15 U.S.C. 1456(b)). With regard to imports of consumer commodities into the United States, the Secretary of the Treasury enforces FPLA. (15 U.S.C. 1456(c).) Additionally, several other agencies have adopted parallel disclosure schemes on their own initiative.(2)
The FPLA defines consumer commodities as being any food, drug, device, or cosmetic and any other article, product or commodity of any kind or class which is customarily produced or distributed for sale through retail sales agencies or instrumentalities for consumption by individuals, or use by individuals for purposes of personal care or in the performance of services ordinarily rendered within the household, and which usually is consumed or expended in the course of such consumption or use.(3) The FPLA grants the FTC authority to exempt commodities it regulates under the Act.(4) Acting under this authority, the FTC has exempted the following products from certain FPLA requirements -- camera film; Christmas tree ornaments; replacement bags for vacuum cleaners; chamois; paper table covers; certain cellulose sponges; candles; and solder. (16 CFR Part 501.) In a similar vein, the FTC has interpreted the meaning of "consumer commodity" as used in FPLA as not including 52 commodities or classes of commodities. These include such items as antifreeze and automotive accessories, garden tools and hardware, toys, typewriter ribbons, and woodenware. (16 CFR Part 503.)
The FPLA sets out the procedures to be followed by the FTC in promulgating regulations. The FPLA states that regulations promulgated by the Commission under Section 4 or Section 5 shall be promulgated, and shall be subject to judicial review, by proceedings taken in conformity with the provisions of subsections (e), (f), and (g) of Section 701 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 371 (e), (f), and (g)) ("FDC Act").(5) The FTC has implemented this statutory requirement to use the rulemaking procedures of Section 371 of the FDC Act by adopting 16 CFR Part 1 Subpart C, which sets forth the procedures for the promulgation of rules under authority other than Section 18(a)(1)(B) of the FTC Act. Subpart C provides that the effective date of any regulations issued under the FPLA shall not be prior to 30 days after publication in the Federal Register. B. Original FTC Regulations Issued Under the FPLA In 1968, the FTC issued the original regulations implementing the FPLA. (33 FR 4718, March 19, 1968.) There are twenty-seven regulations, of which twenty-two relate to the net quantity of contents declaration. Several of the regulations relate to the measurement system to be used in the net quantity declaration. For example, section 500.8 prescribes the units of weight and measures to be used; sections 500.9 through 500.14 set out how weight, fluid measure, length, width, area, and cubic measure should be expressed; and section 500.16 states how fractions should be treated. Each of the original regulations mandating measurement disclosure requires the use of customary inch/pound units. This is because Section 4 of the original FPLA (15 U.S.C. 1453) states that required net quantity disclosure be in pounds, inches, feet, yards, pints, quarts, gallons, etc. One of the FTC regulations issued under the FPLA allows the optional use of metric units in addition to the mandated inch/pound units. Section 500.21 (16 CFR 500.21) states: A separate statement of the net quantity of contents in terms of the metric system is not regarded as a supplemental net quantity statement and an accurate statement of the net quantity of contents in terms of the metric system of weight or measure may also appear on the principal display panel or on other panels. Standard metric abbreviations may be used. Thus, under the original regulations, manufacturers, packers, and distributors of consumer commodities subject to FTC regulations were required to make net quantity of contents disclosure using inch/pound units but had the option of making additional disclosure in metric units. C. The 1992 Metric Amendments to the FPLA In 1992, the FPLA was amended to require that the International System of Units ("SI metric system") as well as the customary inch/pound system of measure be used in the label declaration of net quantity of contents of consumer commodities. (P.L. 102-329, August 3, 1992.) It is these statutory changes which the FTC is implementing in adopting the regulations set out in this notice. The 1992 substantive amendments to the FPLA relate to metric. The basic change that the amendments make is that all labels for consumer commodities printed after February 14, 1994, must state the net quantity of contents in both the customary inch/pound system of measure and the SI metric system. Apart from the changes made to section 4 (15 U.S.C. 1453), section 5 (15 U.S.C. 1454), and section 13 (15 U.S.C. 1461), the FPLA remains the same. Specifically, the statutory amendments are as follows. Section 4 of FPLA requires that a consumer commodity bear a label which specifies the identity of the commodity, the name and place of business of the manufacturer, packer, or distributor, and the net quantity of contents. The amendments to Section 4 require that the contents label be in both the customary inch/pound and metric systems of measurement. Subsection (a)(2) has been amended to mandate the disclosure of contents in terms of mass as well as weight. The original FPLA only required weight, a unit of the customary system of measure. Mass (measured in kilograms and multiples and submultiples) is the metric term for the quantity of matter in an object. Subsection (a)(2) specifies that the metric disclosure shall use the "SI metric system." The "SI" system is the International System of Units (Le Systeme International d'Unites) as interpreted or modified for use in the United States by the Secretary of Commerce. (55 FR 52242, Dec. 20, 1990.) There are several government publications giving guidance on use of the SI.(6) Subsection (a)(3)(A)(ii) states that decimal fractions of the pound and decimal fractions of the SI metric system units shall be carried out to no more than three places on random packages, which are packages with varying weight or mass from a lot of the same consumer commodity. The original FPLA required that decimal fractions of the pound be carried out to no more than two places. Subsection (a)(6) states that content labels containing SI metric disclosure are not required for foods that are packaged at the retail store level. This amendment affects FDA, rather than FTC, regulations. Section 13 of the amended FPLA states that the effective date for the changes to sections 4 and 5 is February 14, 1994. However, it also provides that, "The amendments ... have no effect on the sale or distribution of products whose labels have been printed before such effective date." Thus, companies with labels on hand that were printed before the effective date may continue to use the supply until exhausted. D. Identification of Comments Received Below is an alphabetical list of the comments submitted in response to the NPR. The list includes the document number assigned to the comment on the public record and a general description of the commenter (for those comments that included a description or where the commenter is a publicly recognized company).(7)
E. Comment Suggestions Beyond Commission's Authority Under FPLA Two comments suggested that the Commission amend the regulations issued under the FPLA in ways that are beyond the Commission's authority and that would conflict with the 1992 metric amendments to the FPLA. Specifically, NCWM suggested that packages that are "rational" metric sizes, e.g., 250 mL, 500 mL, 1,2,3, and 4 liter, not be required to have inch/pound content declarations;(8) and Mr. Berke questioned the value of having metric equivalents on consumer packages and objected to the mandatory use of metric labeling.(9) As discussed above,(10) the 1992 amendments to section 4(a)(2) of the FPLA provide that the net quantity of contents shall be stated "using the most appropriate units of both the customary inch/pound system ... and, ... the SI metric system" (emphasis supplied). Thus, Congress has required by statute that both customary inch/pound and SI metric units are to be used for content disclosure. The Commission cannot issue regulations that contravene the statutory requirement. III. Discussion of Rule Amendments Being Adopted Each amendment the Commission is adopting today is identified below. The substantive revisions are described in detail. Minor, self-explanatory changes are merely noted. Comments about a proposed amendment are discussed with that amendment. If none of the comments addressed a proposed amendment, the Commission adopts the amendment without discussion. A. Section 500.2 Terms Defined The Commission is making both significant and minor technical changes to this section. The Commission amends subsection (a) to include a reference to the 1992 statute amending FPLA and subsection (c) to reflect that the Administrator of the Environmental Protection Agency rather than the Secretary of Agriculture enforces the Federal Insecticide, Fungicide and Rodenticide Act. Subsection (d) deletes references to repealed statutes. In addition, throughout these proposed amendments, a few non-substantive, technical changes have been made. In subsection (h), as in other proposed amendments, the metric equivalent for an existing inch/pound reference is added. The use of both systems in the regulations is called for by the FPLA and is consistent with the requirements of the Omnibus Trade and Competitiveness Act of 1988 (P.L. 100, 15 U.S.C. 205b). Subsection (j) is new and defines the term "SI metric," a term used throughout the proposed amendments to the regulations. The definition is derived from official Federal Government publications relating to metric terminology.(11) The definition makes reference to the statutory authority granted to the Secretary of Commerce to interpret and modify the International System of Units (SI) for the United States. Two comments addressed the use of the term "SI metric" in the regulations. NIST wrote that it is confusing and redundant: a) to use the term "SI metric" system because it implies that there are metric systems other than the International System of Units (SI), and b) to use "SI metric" to modify a metric unit name.(12) (An example of the latter would be the reference to "SI metric kilograms" in § 500.8(d) of the new rules). NIST recommended using either "SI" or "metric." NCWM recommended that "you consider eliminating use of the terms 'SI metric' in association with the metric units ... because the terms stand by themselves as metric units."(13) The Commission has decided not to accept these suggestions. The substantive 1992 amendments to section 4 of the FPLA repeatedly make reference to "the SI metric system," and the Commission in its amendments is merely adopting the statutory language. While the comments offer other acceptable means of expressing metric terms, the Commission believes its amendments must be consistent with the statutory language. The rules do not require that labels use the term "SI metric" or any other name for the measurement system. The rules only require the disclosure of the contents using the units of the SI metric system and the customary inch/pound system. Subsection (k) is new and defines the term "customary inch/pound," which is used in the 1992 metric amendments to Section 4(a)(2) of FPLA (15 U.S.C. 1453) and throughout the proposed amendments to the regulations. One comment addressed this matter. NIST wrote: "the term 'customary inch/pound' should not be used as a compound adjective (e.g., customary inch/pound system or customary inch/pound statement). Both terms are independent descriptors for the collection of measurement units we currently use in the United States and their use together is confusing."(14) The Commission has decided not to accept this suggestion. Congress in amending the FPLA in 1992 used the term "the customary inch/pound system of measure." The Commission intends to be consistent with the statutory terminology. Subsection (l) is new and defines the term "'e' mark." This is a certification mark used in the European Community (EC) to establish that the package is appropriately filled in accordance with EC standards. The term is defined because the amendments to section 500.6 (Net Quantity of Contents) allow the term to be used in addition to the mandated content quantity disclosure. Failure to allow the use of the mark could be an impediment to American companies selling in the EC. B. Section 500.6 Net Quantity of Contents Declaration, Location This section relates to the technical requirements to be followed in the presentation of the declaration of contents. There are several amendments to subsection (b). First, the words "or mass" are added after the word "weight." This addition is made necessary by the metric amendments to section 4(a)(2) of the FPLA, which state that the quantity of contents shall be "in terms of weight or mass, measure or numerical count."(15) The same addition is made in each of the regulations that refer to weight so that they uniformly read "weight or mass." An example of an improper metric qualifier, i.e., "giant liter," has been added to the existing examples of improper inch/pound qualifiers. This example should aid in the preparation of labels. Further, the amendment includes a parenthetical metric size descriptor in addition to the existing inch/pound size reference. The amendment to this section allows the use of the "e" mark as part of the statement of the net quantity of contents. Without the change, the "e" mark could be considered an improper qualifier and its use violative of the regulations. The Commission received two comments relating to the use of the "e" mark. The Michigan State Department of Agriculture commented that the use of the "e" mark as part of the statement of quantity of contents is appropriate.(16) NCWM commented on the placement of the "e" mark.(17) The amendment proposed by the Commission reads:
NCWM suggests the following alternative:
NCWM states that the reason for its suggested change is consistency with the law in the European Community and to avoid having the FTC impose specific placement requirements on the "e" mark. The Commission agrees that the Commission rules should be flexible enough to allow companies to meet both the Commission requirements and other reasonable variations, and that specific placement requirements prevent flexibility. However, the Commission is not persuaded that use of the phrase "in the same field of vision" is appropriate. While this terminology may be a term of art in the European Community, it is doubtful that many American companies, especially small businesses, would understand its meaning. Accordingly, the amendments refrain from using the phrase "in the same field of vision" and avoid requiring a precise placement of the "e" mark, although they permit the use of the "e" mark as part of the statement of the net quantity of contents. The Commission has amended the subject sentence in Subsection (b) to read:
C. Section 500.7 Net Quantity of Contents, Method of Expression The only change to this section is the addition of "or mass" each time the term "weight" is used. D. Section 500.8 Units of Weight or Mass and Measure This section specifies the measurement units which must be used in making the content disclosure statements. The amendments to this section implement the 1992 metric amendments to FPLA by specifying the SI metric units which must be used in dual declaration statements. Neither the amendments to the FPLA nor the Commission's regulations require that the measurement systems be used in a particular order.(19) Thus, manufacturers have discretion to put SI metric units first or customary inch/pound units first as they so choose. The examples of disclosures set out in this section and others are intended to assist manufacturers and distributors in designing labels which comply with the amendments to the regulations. The examples are not mandatory and set out different options. For instance, in the only reference to fractions of measurement units, the amendments to the FPLA state that decimal fractions of pounds and metric mass units may be "carried out to not more than three decimal places." (15 U.S.C. 1453) This is a change from the original FPLA, which restricted decimal fractions to two places. The examples in the Commission's amended regulations use different decimal places to show that the manufacturer or distributor can choose which to use. As another instance of options presented to manufacturers or distributors, some of the examples used in the amended regulations state the SI metric measurement first while others put customary inch/pound units first. The high degree of precision used in the examples contained in the proposed amendments generated thirteen comments.(20) But for one,(21) the comments uniformly stated that the examples use too precise measurements for commercial purposes. The comments suggest that in most instances three digits, including both whole number and decimals, should be used while in certain situations two digits should be allowed. As a result of the comments, the Commission has changed the examples throughout the regulations to use three and two digits as suggested and has added an amendment to section 500.19 (see Part III.O. below) embodying such usage.(22) The only description of measurement precision in the 1992 amendments to the FPLA is in Section 4(a)(3)(A), which states that for certain packages decimal fractions may be carried out to no more than three places. Based upon this statutory language, the illustrative examples used in the proposed amendments contained up to three decimal places. Sometimes this resulted in examples using as many as six total digits, including whole numbers and decimal places. The comments generally stated that such precision implies a greater measuring accuracy than is likely to be possible.(23) The comment from Mr. John Buchanan is illustrative: I suggest that the regulatory requirement for net quantity be limited to three significant digits, which would still be consistent with the FPLA specification but would lead to less cluttered labels, greater truth in labeling by removing the spurious accuracy, and a more rapid conception of the metric system by consumers. ... Conversions such as 1 lb. (453.59 g) look very intimidating to the average citizen. Some of the implied accuracies are bordering on the ludicrous, for example, in 500.27 you are suggesting that the linear dimensions of facial tissue can be measured to one-hundredth of a millimetre, which is less than the diameter of a single fiber! Or, in 500.16, where the capacity of a 6 fl. oz. cup is expressed to an accuracy of one-hundredth of a millilitre - far less than one drop.(24) Based upon its consideration of the comments, the Commission has changed the examples used in the final amendments. The changes require the use of three digits for the quantity declaration (e.g., "453g (1 lb)" (§ 500.9(a)) except where the quantity is below 100 grams, milliliters, centimeters, square centimeters or cubic centimeters where the quantity declaration can be shown in two figures (e.g. "17 in. x 4 in. x 20 in. (43 x 10 x 50 cm)" (500.16(a)(1)(ii)). These changes bring the amended regulations into conformity with the Uniform Packaging and Labeling Regulation adopted by the National Conference on Weights and Measures and the packaging and labeling regulations of the Canadian Legal Metrology Branch.(25) Aside from the above changes, subsection (a) requires the use of grams, milligrams, and kilograms as well as pounds and ounces in weight or mass declarations. Examples of dual declarations are included. Subsection (b) requires the use of liters and milliliters as well as gallons, quarts, and pints in fluid measure disclosure. The term "Celsius" replaces "Centigrade" because Centigrade is obsolete for temperature measurement. Subsection (c) states that meters, centimeters, and millimeters must be used as well as inches in linear measure. Subsection (d) requires that area measurement use square meters, square decimeters, square centimeters, and square millimeters as well as square yards, square feet, and square inches. Subsection (e) states that dry measure statements shall use liters and milliliters as well as bushels, pecks, dry quarts, and pints. Subsection (f) requires, in cubic measure disclosures, the use of cubic meters, cubic centimeters, and, cubic centimeters as well as cubic yards, cubic feet, and cubic inches. E. Section 500.9 Units of Weight and Mass, How Expressed The Commission amends this section to include the requirement for the use of mass as well as weight and continues to describe the appropriate customary inch/pound units to be used on packages of various weights. Subsection (a) includes the "net mass" disclosure and has several metric examples added. The amended subsection allows the term "net mass" as an alternative to "net weight" in stating the net quantity of contents. The comments state that the requirement to use the terms "net weight" or "net mass" is unnecessary and "... creates clutter on a label that is much better left with free space ...."(26) Declaring contents without "net weight" or "net mass" is "already the successful practice in Canada" and has been adopted by the National Conference on Weights and Measures.(27) Further, the proposed Food and Drug Administration regulations for metric labeling of food products under the FPLA also make the use of "net weight" or "net mass" optional. Based upon the reasoning contained in the ten comments on this issue,(28) the Commission has determined to make optional the use of the terms "net weight" and "net mass." Thus, under the amendment, a manufacturer or distributor need only state the weight or mass of the contents without using the qualifying terms "net weight" or "net mass" (e.g. "453g (1 lb)." However, the amendment to subsection (a) makes it clear that even where the terms are not used, the quantity of contents declaration shall always declare the net quantity of contents.(29) Subsection (b)(2) reflects the amendment to the FPLA which deletes the former avoirdupois (the system of weight based upon the pound of 16 ounces) requirement that packages weighing one pound or more but less than four pounds disclose both the total number of ounces and the number of pounds, with any remainder in ounces or common or decimal fractions of the pound. Thus, under the old law, if a package weighed 3 and one-half pounds it would properly be labeled "56 oz. (3 lbs. 8 oz.)." The new law requires only the expression of pounds and remainder of ounces, so that in the prior example "3 lbs. 8 oz." would be sufficient. For weights greater than 1 pound but less than 4 pounds manufacturers will have the option to include an additional statement of weight in ounces "immediately adjacent" to the required expression in pounds, as subsection (b)(2) has been amended to allow this discretionary second expression of weight. Subsection (b)(1) retains the requirement that disclosure be given exclusively in ounces for packages containing less than one pound. Proposed subsection (b)(3) as it appeared in the NPR retained the current requirement that for weights of 4 pounds or more disclosure be given exclusively in whole pounds, with any remainder in ounces or fractions of the pound. The Commission received two comments on this issue, each of which argued that the use of ounces be permitted as an optional additional disclosure on products weighing 4 pounds or more. Procter & Gamble wrote: We believe manufacturers should be allowed to voluntarily include net contents in units of ounces or fluid ounces for products containing more than four pounds or more than one gallon. This provision would again promote fair value comparisons between the largest 1 or 2 sizes of a consumer product such as laundry detergent with the smaller sizes of the same brand or alternate brands. Comparison between two sizes such as 50 oz (3 lb 2 oz) and 85 oz (5.31 lb) is accomplished much more easily by comparing ounces. Comparison between two sizes such as 48 fl oz (1 quart 1 pint) and 144 fl oz (1 gallon 1 pint) similarly is accomplished much more easily by comparing fluid ounces. We see important consumer benefits and no risks in extending voluntary use of ounces or fluid ounces to larger sizes.(30) The National Conference on Weights and Measures similarly urges the Commission to allow the voluntary use of ounces and fluid ounces to larger size packages. NCWM states: The [Laws and Regulations] Committee believes that allowing manufacturers to voluntarily include dual-quantity declarations would (1) reduce the cost of implementing the metric amendments; (2) facilitate value comparison by consumers; (3) minimize change for some manufacturers; (4) not increase label clutter.(31) The Commission is persuaded that permitting the voluntary use of ounces on packages of four pounds or more is in the public interest and has so amended subsection b(3). The Commission believes that allowing the use of ounces on large size packages will facilitate price comparisons without any negative consequences. Subsection (c) states that for random packages, i.e., packages with varying weights from a lot of the same commodity, the decimal fractions of the pound should not be carried out to more than three places. Further, this subsection is changed to reflect the amendment to FPLA that random packages, unlike other packages, are not required to, but may, include a metric statement of mass. F. Section 500.10 Units of Fluid Measure, How Expressed This section continues to describe how the inch/pound fluid measure statement must be expressed. Under the amended FPLA, there is no requirement that the disclosure in fluid ounces be made when the amount is greater than a pint. Accordingly, subsection (b)(2) deletes the prior requirement that both the total number of fluid ounces and the largest whole unit (quarts, quarts and pints, or pints) plus remainder be used for items of at least 1 pint but less than 1 gallon. For quantities of at least 1 pint but less than 1 gallon, manufacturers will have the option to include an additional statement of net quantity in fluid ounces "immediately adjacent" to the required expression of largest whole unit, as proposed subsection (b)(2) allows this discretionary second expression of fluid measure. Subsection (b)(1) retains the requirement that disclosure be given exclusively in fluid ounces for quantities less than one pint. Proposed subsection (b)(3) as it appeared in the NPR retained the requirement for quantities of one gallon or more that disclosure be given exclusively in largest whole unit, with any remainder in terms of fluid ounces or fractions of the pint or quart. The Commission received two comments on this subsection arguing in favor of permitting the optional use of fluid ounces for products above one gallon.(32) For the reasons discussed in Part III.E. above, the Commission has determined that it is in the public interest to permit the voluntary additional disclosure of fluid ounces for products above one gallon. Subsection (b)(3) has been amended to reflect the Commission's determination. G. Section 500.11 Measurement of Commodity Length, How Expressed This section describes how to express linear measure in terms of yards, feet, and inches. The amendments reflect the determination by Congress not to continue to require the disclosure of the total number of inches for items one foot or more in length. For those items one foot or more in length, disclosure should be made in the largest whole unit with the remainder in inches or common or decimal fractions of the foot or yard. H. Section 500.12 Measurement of Commodities by Length and Width, How Expressed This section describes how to express the net quantity for bidimensional commodities which are measured by length and width, such as roll type goods like foils and tapes. The amendments add metric parentheticals to the inch/pound statements and examples. The Commission amends subsection (a)(1) by deleting the requirement that length and width be expressed in "linear inches and fractions thereof." This requirement is inconsistent with amendments to subsection 500.8(c), which provide that "statements of linear measure shall be in terms of both yards, feet, and inches and SI metric meters, centimeters, or millimeters." Consequently, the Commission amends subsection (a)(1) to read that length and width are to be expressed "in linear measure" and that the "customary inch/pound statement is to be expressed in inches and fractions thereof." Subsection (a)(2) has been made consistent with amended subsection 500.8(d), which provides that "statements of measure of area shall be in terms of both square yards, square feet, and square inches and SI metric square meters, square centimeters, and square millimeters." The Commission amends the subsection (a)(2) requirement that disclosure "be expressed in terms of square inches, followed in parentheses by the length and width in the largest whole unit (yard or foot)," to read that net quantity is to "be expressed in terms of area, followed by length and width" and that the "customary inch/pound statement of area is to be expressed in square inches with length and width expressed in the largest whole unit (yard or foot)." For the same reasons described above, the Commission modifies two other existing subsections in section 500.12. Subsection (a)(3) is rewritten to reconcile it with amendments to the disclosure provisions of subsection 500.8(d), and subsection (b) is amended to reconcile it with the linear measure disclosure provisions of subsection 500.8(c). I. Section 500.13 Measurement of Commodities by Area Measure Only, How Expressed This section describes how to express the net quantity in the inch/pound system for commodities that are measured in area only. The amendments add metric parentheticals to the inch/pound statements. The amendments reflect the determination by Congress not to continue to require the disclosure of square inches for areas one square foot or greater. J. Section 500.14 Statements of Cubic Measure and Dry Measure The amendment to this section deletes a superfluous reference to dual declarations of net quantity of contents. K. Section 500.15 Units of Count, More Than One Ply The amendment to this section includes metric in the example. L. Section 500.16 Measurement of Container Type Commodities, How Expressed Formerly section 500.15a, the Commission renumbers this section and adds metric parentheticals to the inch/pound statements and examples. Further, subsections 500.16(b)(1) and (b)(2) are brought into conformity with other sections of the amendments by specifying the customary inch/pound units of liquid and dry measurement which should be used. M. Section 500.17 Fractions Formerly section 500.16, the Commission renumbers this section and adds the requirement that SI metric declarations contain only decimal fractions. This prohibition against using common fractions with metric units is consistent with staff interpretations dating from 1984 and with proper metric usage. In accordance with the amendments to FPLA, the amendment to this section states that decimal fractions shall not be carried out to more than three decimal places, rather than the previous two decimal places. N. Section 500.18 SI Metric Prefixes This is a new section and presents the metric prefixes to be used on labels. Unlike scientific metric prefix charts which have prefixes for huge amounts, e.g. "exa -" for units with eighteen trailing digits (1,000,000,000,000,000,000) and for minuscule amounts, e.g. "atto -" for units with eighteen preceding digits (.000 000 000 000 000 000 1), the chart is restricted to prefixes usable in the size range of consumer commodities. The chart contained in the proposed regulation referred to "kilo-", "hecto-", "deca-", "deci-", "centi-", and "milli-". However, based on comments received, the Commission is adding the prefix "micro-" and its appropriate symbol, the Greek letter "mu" (µ) and deleting the "hecto-." As stated by one commenter, the micrometer "...is used for thickness of plastic and other material thicknesses ... ."(33) Since the Commission's FPLA regulations govern products such as garbage bags, foil and other household wrapping products the Commission has determined that it is appropriate to add the prefix for the SI metric unit used to describe their thickness. The comments stated that the prefix "hecto" was not used on consumer products.(34) O. Section 500.19 Conversion of SI Metric Quantities to Inch/Pound and Inch/Pound Quantities to SI Metric Quantities This is a new section. Subsection (a) sets out the conversion factors for converting from metric to inch/pound and from inch/pound to metric quantities. The chart facilitates compliance with the 1992 amendments to the FPLA requiring dual inch/pound and metric disclosure by giving manufacturers the technical information they need to convert one measurement system to the other. The factors used in this chart are consistent with those published in the "Guide for the Use of the International System of Units," NIST Special Publication 811, Department of Commerce, September, 1991, and "Preferred Metric Units For General Use by the Federal Government," Federal Standard 376B, General Services Administration, January 27, 1993. Because many of the products governed by the Commission's regulations issued under the FPLA are measured in the customary inch/pound unit "mil" (1/1000 of an inch), the Commission has added a factor for converting mils into the SI metric unit micrometer. Subsection (b), relating to the number of digits to be used in making the required content disclosures, was not in the proposed regulation but has been added as the result of the comments received. As discussed in section III.D. above, the issue of the degree of precision needed in making the disclosures generated 12 comments(35), 11 of which argued for avoiding unneeded degrees of accuracy. Based on the logic contained in the comments, the Commission has determined that for most declarations of content the use of three significant digits will suffice to give consumers adequate information. In certain situations, i.e., where the quantity involved is below 100 grams, milliliters, centimeters, square centimeters or cubic centimeters, the manufacturer or distributor has the option of using two digits. The prescribed use of three and two digits is consistent with the Uniform Packaging and Labeling Act adopted by the National Conference on Weights and Measures and the packaging and labeling regulations of the Canadian Legal Metrology Branch.(36) P. Section 500.20 Conspicuousness Formerly section 500.17, the Commission renumbers this section. Q. Section 500.21 Type Size in Relationship to the Area of the Principal Display Panel Formerly section 500.18, the Commission renumbers this section and amends it to add metric parentheticals. Subsection (g) is new and relates to the size requirements of the "'e' mark."(37) Four comments raised the issue of letter and print size requirements when the metric symbols, especially the "mL" symbol, are used.(38) The comments express concern that the requirement for lower case type for metric symbols may increase the height requirements for net content declarations in instances where other provisions in section 500.21 impose minimum type sizes on lower case letters.(39) As a result, the commenters believe that the size of the area taken up by the net contents declaration would increase. To alleviate this result, the commenters propose amendments to Section 500.21. First Brands Corporation suggests that "... the minimum height requirement for the 'm' in the abbreviation 'mL' for milliliter be no less than one-half of the minimum height standards prescribed in ..." other parts of Section 500.21.(40) The NCWM offers the following proposal for consideration:
Mr. Stempnik suggests that the following sentence be added:
Borden suggests that "when upper and lower case letters are used, it is the upper case letter 'o' or its equivalent that shall meet the minimum height standards."(43) Based upon the comments, the Commission believes that it is necessary to address the issue of type size changes resulting from the metric amendments to the FPLA. The Commission adopts the proposal made by the National Conference on Weights and Measures because it presents a standard which is precise, yet not complex or burdensome for industry to follow. Establishing minimum height and size requirements for type and print of letters should assure adequate disclosure to consumers without burdening industry by necessitating an increase in the minimum height for the content declaration. Therefore, the Commission amends section 500.21 by adding a subpart (h) setting out these requirements. R. Section 500.22 Abbreviations Formerly section 500.19, the Commission renumbers this section. S. Section 500.23 Expression of Net Quantity of Contents in SI Metric Units This is a new section. Subsection (a) sets out the "rule of 1000" which states that, with exceptions, metric disclosure should be in units ranging in value from 1 to 1000. Thus, the declaration would be "750 mL" rather than "0.75L." The "rule of 1000" has been used by industry and FTC staff since 1984 and has the effect of simplifying and unifying label disclosure. Subsection (b) sets out the symbols to be used for SI metric units. These symbols are consistent with those preferred for government usage.(44). Based on the eight comments received(45), the Commission has added the lowercase "l" as an alternative to the uppercase "L" as the symbol for the SI metric liter and milliliter. The comments point out that while the uppercase "L" is the preferred symbol, there is no international agreement on requiring only the uppercase "L." Indeed, international law may require permitting the use of the lowercase "l." As Mr. John H. Woelflein commented: Because the BIPM SI brochure as well as ISO 1000 give the symbol for liter as "l,L", the US is obligated as a Meter Convention signatory to permit the use of either symbol. Otherwise, imported products which use the lower case "l" could be excluded by Customs authorities. Of course, the capital "L" is preferred for USA use.(46) Further, companies that export products often prefer to use the lowercase "l" "as being more acceptable in some countries."(47) Section 500.24 Supplemental Statements Section 500.25 Net Quantity, Average Quantity, Permitted Variations Section 500.26 Representations of Servings, Uses, Applications Section 500.27 Multiunit Packages Section 500.28 Variety Packages Section 500.29 Combination Packages The amendments to these six sections renumber them, add metric examples and parentheticals, and make reference to "mass" as well as weight where appropriate. In the amendment to section 500.26 the reference to the National Bureau of Standards has been changed to read "National Institute of Standards and Technology." IV. Other Statutory and Regulatory Considerations In promulgating the amendments to the FPLA regulations, the Commission has considered certain statutory and regulatory requirements. These requirements arise under the National Environmental Policy Act of 1969 (42 U.S.C. 4321); the Paperwork Reduction Act (44 U.S.C. 3501); the Metric Conversion Act (15 U.S.C. 205b); the Commission's Regulatory Review Program; and the Regulatory Flexibility Act (5 U.S.C. 603). A. National Environmental Policy Act Under the Commission's rules (16 CFR Subpart I, Section 1.81 et seq.) implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321), no "major" rule amendment "significantly affecting the quality of the human environment" will be proposed unless an environmental assessment or impact statement has been prepared (16 CFR 1.82). For the following reasons, it is not appropriate to have an environmental assessment or statement for the amendments to regulations issued implementing the metric amendments to FPLA. First, the amendments do not "significantly affect the quality of the human environment" because they do not independently create significant new duties. Moreover, any environmental consequences that may come from metric measurement translation and disclosure are not the result of the amendments to the regulations, but instead are consequences of the amendments to FPLA by Congress. Second, the environmental effects, if any, of the amendments are so uncertain that any environmental analysis would be based on speculation. (See, 16 CFR 1.83(a).) Third, under section 13 of the amended FPLA, labels printed prior to February 14, 1994 may continue to be used until the supply is exhausted. Thus, companies will not have to discard unused labels into the waste stream and, by so doing, cause damage to the environment. Therefore, the amendments to the FPLA regulations are unlikely to cause any significant impact on the environment. B. Paperwork Reduction Act Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the Commission, before promulgating a rule that requires the "collection of information," must obtain approval from the Office of Management and Budget. The amendments only require that certain information be disclosed to consumers. In 1990, the Supreme Court ruled that the authority of the Office of Management and Budget to approve "collection of information" by Federal agencies does not include authority to review agency rules requiring companies to disclose information to third parties. Dole v. Steelworkers, 494 U.S. 26, 35 (1990). Under this case, the metric labeling requirements would not be considered collection of information. Thus, the Commission need not seek approval from the Office of Management and Budget. C. The Metric Conversion Act Section 205b of the Metric Conversion Act, as amended by the Omnibus Trade and Competitiveness Act, expresses Congressional policy regarding measurement systems. This Act states that the metric measurement system is the preferred system of weights and measures in the United States. It also requires federal agencies to use the metric system of measurement in all procurement, grants, and other business-related activities (which include rulemakings), except to the extent that such use is impractical or is likely to cause significant inefficiencies or loss of markets to United States firms. The amendments adopted today by the Commission fully comply with the requirements of the Metric Conversion Act. Each of the amended regulations providing for quantity disclosure requires a statement of net quantity of contents in metric units as well as in customary inch/pound units. The amendments add metric examples and parenthetical metric equivalents to the existing regulations. Further, the amendments explicitly present conversion factors from inch/pound to metric and vice versa and fully describe metric units and prefixes. D. The Commission's Regulatory Review Program As part of the Commission's ten-year regulatory-review plan for existing rules and guides, the Commission specifically sought comments in the NPR on the costs and benefits of the existing and amended regulations under the FPLA and their regulatory and economic impact. There were two comments that related to the economic impact on small business of the metric amendments.(48) There were no comments relating to the economic impact of the regulations on larger businesses. Cramer Products stated a concern not with the intent or scope of the regulations, but with the proposed timetable for compliance. Cramer contends that there would be an average cost of $200 to change the labels for each of the 500 products it sells for a total of $100,000.(49) To alleviate these costs, Cramer proposes changing the effective date from February 14, 1994 to February 14, 1996. This extension of time would "allow companies like Cramer to more gradually phase-in the changes, spreading the cost and personnel requirements over the next 2 years."(50) Congresswoman Meyers, while not supplying any compliance cost data, also stated a concern that small businesses be given adequate time within which to come into compliance. While acknowledging that the amendments to the FPLA allow any supply of labels printed before February 14, 1994 to be used until exhausted, she states "the fact remains that most small businesses don't have the resources to stockpile labels like big enterprises do."(51) A decision by the Commission to adopt a later effective date for its rules would not grant significant relief to small businesses. By terms of the FPLA statute, all businesses must conform to the new dual disclosure requirements therein by February 14, 1994, whatever the effective date of the Commission's implementing rules. Thus, businesses would have to incur the cost of label changes in any event once their existing supply runs out. The Commission shares the commenters' concern that there be no undue hardship on businesses that are required to make the transition to the dual disclosures specified in these rules. However, the comments do not provide factual data quantifying such costs sufficient for the Commission to conclude that there is a significant economic impact on small businesses as a class.(52) Furthermore, while section 5(b) of the FPLA permits the Commission to grant exemptions from statutory requirements where it is demonstrated that compliance with the new requirements of section 4 is impracticable or not necessary for adequate protection of consumers, such exemptions are intended to be granted only in exceptional circumstances. (138 Congressional Record H5345 (daily ed. June 29, 1992).) The rulemaking record in this matter does not allow the Commission to conclude that exceptional circumstances exist for small firms that would make compliance with the requirements of the amendments adopted today impracticable or unnecessary adequately to protect consumers. As discussed in Part II above, the amended regulations issued today as well as the unamended regulations which continue in effect are mandated by the FPLA. While there are costs associated with compliance, the Commission has designed the regulations to minimize the economic burden on businesses, both large and small.(53) E. Regulatory Flexibility Act This Statement of Basis and Purpose contains a final regulatory flexibility analysis under the Regulatory Flexibility Act, 5 U.S.C. 603-604. A final regulatory flexibility analysis must be conducted unless the head of the agency "certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities." (5 U.S.C. 605(b).) Based upon information in the public record, the Commission believes that it is unlikely that the amendments being adopted today will have a significant economic impact on a substantial number of small firms. However, given the existing uncertainty on this question, the Commission has decided to publish this final regulatory analysis. The Commission complied with the requirements of section 603 of the Regulatory Flexibility Act by including in the Notice of Proposed Rulemaking (58 FR 43726, August 17, 1993) certain information for the initial regulatory flexibility analysis. Specifically, the Commission explained that the reasons for the amendments and their objective are to implement the explicit directives of Congress in the FPLA. Similarly, the Commission stated that the legal basis is provided by the FPLA. (5 U.S.C. 603(b)(1)-(2).) Further, the Commission explained that there are no recordkeeping or reporting requirements in the amendments, and that the compliance requirements are essentially measurement and labeling tasks described. (5 U.S.C. 603(b)(4).) The Commission stated that there also are no relevant Federal rules which may duplicate, overlap, or conflict with the proposed rules, inasmuch as the Commission, the FDA, and other agencies with authority to implement the FPLA are given exclusive jurisdiction over various classes of consumer commodities. (5 U.S.C. 603(b)(5).) The Commission specifically requested comments on whether the amendments may have a significant impact on small business. The Commission received one comment specifically responding to the request for information on the Regulatory Flexibility Act(54) and two comments that otherwise included certain economic material relating to small business costs of compliance.(55) Mr. Stempnik responded to the regulatory flexibility questions by stating: Exclusions should be only what is required by the revised FPLA and no more. ...I do not support exemptions because labels are changed frequently for marketing reasons and companies can stockpile unlimited quantities of old labels before the deadline and continue to use them until they are used up.(56) Cramer Products commented, without substantiating information, that there would be an average cost per product of $200 to change its labels to bring them into compliance, and Congresswoman Meyers was concerned that the deadline for compliance of February 14, 1994 would cause harm to small business.(57) The amended regulations that the Commission adopts today cover every company in the economy that produces consumer commodities other than those commodities falling within the authority of other agencies or otherwise exempted from the statute's coverage. Based on the information now available on the public record, it is not feasible for the Commission to estimate the number of entities within this class of industry that also are small companies within the meaning of the Regulatory Flexibility Act. (5 U.S.C. 601(3).) Nevertheless, the information in hand suggests that the overall economic impact of the metric amendments to the regulations issued under FPLA may not be significant. In essence, all the amendments require is that companies make simple mathematical conversions from the inch/pound measurement system into the metric measurement system and include the metric equivalents on already mandated label disclosure of contents of consumer commodities.(58) The FPLA states that non-complying labels printed prior to February 14, 1994 may continue to be used until the supply is exhausted. Similarly, the direct costs imposed on consumers as a result of the amendments appear to be minimal since consumers will still obtain disclosures in the customary inch/pound system. There are, however, likely to be some indirect costs associated with the amendments as firms incur costs associated with complying with the amendments. There are basically three types of costs that firms incur as a result of labeling regulations. These costs are inventory disposal costs, administrative costs, and printing costs. Inventory disposal costs consist of the value of inventory that must be disposed of in order to comply with the proposed regulation. These costs will be zero since the amendments do not apply to labels that were printed before the effective date of the regulation. Administrative costs represent the additional costs incurred at an administrative level in order to comply with the regulation. Administrative costs include determining which products fall within the scope of the regulation; establishing a corporate position on the policy; devising a compliance strategy; and overseeing the compliance strategy. These costs are likely to be relatively low for the proposed change to the FPLA. Most products that are already covered by the FPLA will be subject to the amendments adopted today and the amendments appear to clearly state what products would be excluded. In addition, firms would not need to undertake potentially costly analytic or market testing to comply with the changes. Thus, it appears that administrative costs per firm would be low. Printing costs consist of the additional printing costs incurred due to the changes in the regulations adopted today. These costs will vary among firms depending on various factors including, but not necessarily limited to the following: (1) how frequently the firm typically changes its label; (2) the average inventory of labels; and (3) the printing process utilized by the firm. For example, if the firm updates its labels on a yearly basis, it may delay its normal label update to coincide with changes it will have to make in response to the changes in the FPLA. If so, the additional printing costs caused by the change would be minimal. If, however, the firm normally updates its labels only once every ten years and if it has recently updated its labels, then its costs will be higher. Incremental printing costs will also depend, to some extent, on the average inventory. The greater the time period between reordering labels, the more likely it is that the label change due to the regulation can be planned to coincide with a planned label change, all else being equal. The type of printing process utilized by the firm also affects the incremental printing costs. While firms may be able to simply engrave the new information on existing plates if flexography or lithography printing methods are used and space permits, new cylinders would be required if gravure printing is utilized. Given the relative simplicity of the label change required by the proposed amendment, the fact that many firms already disclose information in metric, and the fact that many firms are likely to have been aware since late 1992 that the amendments were scheduled to take effect on February 14, 1994, printing costs per firm associated with the amendments are likely to be low. Thus, the amendments adopted today, may not have a significant impact on a substantial number of small entities.(59) Section 604 of the Regulatory Flexibility Act sets out three subjects which must be addressed in the final regulatory flexibility analysis. Section 605 of the Act (Avoidance of duplicative or unnecessary analysis) states that the analysis required by section 604 may be done in conjunction with other analysis. A succinct statement of the need for and the objectives of the rule are set out in Part II above. (5 U.S.C. 604(a)(1).) A summary of the issues raised by the public comment in response to the initial regulatory flexibility analysis and the Commission's assessment thereof are discussed above in this section and in Part IV.D., regarding the Commission's Regulatory Review Program. (5 U.S.C. 604(a)(2).) There are no significant alternatives to the amended regulations adopted today which will accomplish the stated objectives of the applicable statutes and which minimize any significant economic impact on small entities. (5 U.S.C. 604(a)(3).) For example, it would be difficult to devise different or simplified labeling requirements for small entities that would still implement dual disclosure requirements and yet avoid the principal cost to such businesses, i.e., redesigning labels. For the same reason, the use of general performance standards rather than explicit requirements likely would not result in substantial cost savings. Moreover, the FPLA is quite specific in directing the use of particular modes of disclosure in most instances. Further, as discussed in Part III.D. regarding the Commission's Regulatory Review Program, the amendments adopted today have been designed to minimize the economic impact on small business. In addition, the Commission has taken further action to reduce any costs of transition for firms which may have been unaware of the pending metric disclosure requirements of the amended FPLA. As discussed in Section V. infra, the Commission, in order to harmonize with state enforcement policy adopted by NCWM, has stated it will avoid taking law enforcement action under the mew metric amendments to the FPLA rules until November 8, 1994. V. Enforcement Policy Statement The effective date of these regulations is February 14, 1994. In crafting the FPLA statute, Congress acknowledged the need for businesses to have time within which to learn about the existence of the requirements to use metric measurement and to come into compliance. Section 13 of the FPLA states that the metric amendments "shall have no effect on the sale or distribution of products whose labels have been printed before" February 14, 1994. (15 U.S.C. 1451(13).) The Commission expects that the states, as in the past, will adopt uniform state laws that mirror the Commission's new FPLA metric requirements. The National Conference on Weights and Measures,(60) which represents state enforcers of such laws, already has adopted an enforcement policy designed to avoid undue hardship to those firms who may have been unaware of the pending metric requirements. In its "Resolution on Enforcement of SI Metric Labeling Requirements," NCWM has stated that it is advisable "to allow ample time for industry to become aware of the metric labeling requirements, and to reduce the burden on industry and thus reduce the cost of updating of package labels."(61) To achieve these goals, the National Conference has resolved to enforce its metric labeling requirements until November 8, 1994 by sending to non-complying businesses letters which state "not only the area of noncompliance, but also the correct way to be in compliance."(62) Commission law enforcement actions during this period against non-complying firms could undercut the objectives stated in the NCWM resolution. While states enforce independent laws, these laws for the most part mirror the Commission's FPLA rules. Thus, fear of enforcement by the Commission of the federal version of the new state metric requirements could lead some firms immediately to incur costs of re-labeling, despite assurances of no state law enforcement actions. In the interest of promoting harmonization with state enforcement, the Commission therefore has determined to avoid taking law enforcement actions against companies not in compliance with the metric amendments to the final FPLA regulations until November 8, 1994.(63) List of Subjects in 16 CFR Part 500. Fair Packaging and Labeling Act, Labeling, Packaging and containers, Trade practices. For the reasons set out in the preamble, Title 16 of the Code of Federal Regulations is amended by revising part 500 to read as follows: Part 500 - Regulations Under Section 4 of the Fair Packaging and Labeling Act
Authority: 15 U.S.C. 1453, 1454, 1455. § 500.1 Scope of the regulations of this part. The regulations in this part establish requirements for labeling of consumer commodities as hereinafter defined with respect to identity of the commodity; the name and place of business of the manufacturer, packer, or distributor; the net quantity of contents; and net quantity of servings, uses, or applications represented to be present. As used in this part, unless the context otherwise specifically requires: (a) The term Act means the "Fair Packaging and Labeling Act" (Public Law 89-755, approved Nov. 3, 1966; 80 Stat. 1296 et seq.; 15 U.S.C. 1451 et seq., as amended by Public Law 102-329, August 3, 1992). (b) The term regulation or regulations means regulations promulgated by the Commission pursuant to sections 4, 5, and 6 of the Act (15 U.S.C. 1453, 1454, 1455). (c) The term consumer commodity or commodity means any article, product, or commodity of any kind or class which is customarily produced or distributed for sale through retail sales agencies or instrumentalities for consumption by individuals, or use by individuals for purposes of personal care or in the performance of services ordinarily rendered within the household, and which usually is consumed or expended in the course of such consumption or use. For purposes of the regulations in this part the term consumer commodity does not include any food, drug, device or cosmetic as defined by section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321); any meat or meat product, poultry or poultry product, or tobacco or tobacco product; any commodity subject to packaging or labeling requirements imposed by the Administrator of the Environmental Protection Agency pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.); any commodity subject to the provisions of the eighth paragraph under the heading "Bureau of Animal Industry" of the Virus-Serum-Toxin Act (21 U.S.C. 151-157); any beverage subject to or complying with packaging or labeling requirements imposed under the Federal Alcohol Administration Act (27 U.S.C. 201 et seq.); any commodity subject to the provisions of the Federal Seed Act (7 U.S.C. 1551-1610). (d) The term package means any container or wrapping in which any consumer commodity is enclosed for use in the delivery or display of that commodity to retail purchasers. For purposes of the regulations in this part the term package does not include shipping containers or wrappings used solely for the transportation of any consumer commodity in bulk or in quantity to manufacturers, packers, or processors, or to wholesale or retail distributors thereof unless used in retail display; shipping containers or outer wrappings used by retailers to ship or deliver any commodity to retail customers if such containers and wrappings bear no printed matter pertaining to any particular commodity; or containers subject to the provisions of the Act of August 3, 1912 (37 Stat. 250, as amended; 15 U.S.C. 231-233), the Act of March 4, 1915 (38 Stat. 1186, as amended; 15 U.S.C. 234-236); or transparent wrappers or containers which do not bear written, printed, or graphic matter obscuring any part of the label information required by this part. (e) The term label means any written, printed, or graphic matter affixed to or appearing upon any consumer commodity or affixed to or appearing upon a package containing any consumer commodity; except that:
(f) The term person includes any firm, corporation or associations. (g) The term commerce means:
(h) The term principal display panel means that part of a label that is most likely to be displayed, presented, shown, or examined under normal and customary conditions of display for retail sale. The principal display panel must be large enough to accommodate all the mandatory label information required to be placed thereon by this part without obscuring designs, vignettes, or crowding. This definition does not preclude utilization of alternate principal display panels on a label of a package, but alternate principal display panels must duplicate the information required to be placed on the principal display panel by this part. This definition does not preclude utilization of the container closure as the surface bearing the principal display panel if that label location is the one most likely to be displayed, presented, shown, or examined under normal and customary conditions of display for retail sale. The principal display panel of a label appearing on a cylindrical surface is that 40 percent of the circumference which is more likely to be displayed, presented, shown, or examined under normal and customary conditions of display for retail sale. The principal display panel of a consumer commodity marketed in a decorative type container, or a container having a capacity of 1/4 ounce (7.4 mL) or less, may be considered to be a tear-away tag or tape affixed to the container and bearing the mandatory label information as required by this part, but the type size of the net quantity of contents statement shall be governed by the dimensions of the container itself. The principal display panel of a consumer commodity marketed on a display card to which the immediate container of the commodity is affixed may be considered to be the display panel of the card, and the type size of the net quantity of contents statement is governed by the dimensions of the display card. (i) The term random package means a package which is one of a lot, shipment, or delivery of packages of the same consumer commodity with varying weights, that is, packages with no fixed weight pattern. (j) The term SI metric refers to units belonging to the International System of Units (abbreviated "SI" from the French, Le Systeme International d'Unites), as interpreted or modified for use in the United States by the Secretary of Commerce. They include the SI units (together with their multiples and submultiples) as well as other metric units (e.g., the liter) that are accepted for use with the SI units because of their practical importance. (k) The term customary inch/pound refers to units belonging to the system of units used in the United States based on or derived from the ounce, pound, and ton for weight; the inch, foot, yard, and mile for length; the fluid ounce, pint, quart, and gallon for volume; and dry pint, dry quart, peck, and bushel for dry measure. (l) The term "e" mark refers to the symbol "e" used in connection with the quantity declarations on labels of some consumer commodities marketed primarily in the European Community (EC). The "e" mark constitutes a representation by the packer or importer that the package to which it is applied has been filled in accordance with the average system of quantity specified by the EC. The average system is a method of declaring package fill in the EC and other countries of the world, including the United States. § 500.3 Prohibited acts, coverage, general labeling requirements, exemption procedures. (a) No person engaged in the packaging or labeling of any consumer commodity for distribution in commerce, and no person (other than a common carrier for hire, or a freight forwarder for hire) engaged in the distribution in commerce of any packaged or labeled consumer commodity, shall distribute or cause to be distributed in commerce any such commodity if such commodity is contained in a package, or if there is affixed to that commodity a label, which does not conform to the provisions of the Act and of the regulations in this part. (b) Persons engaged in business as wholesale or retail distributors of consumer commodities shall be subject to the Act and the regulations in this part to the extent that such persons are engaged in the packaging or labeling of consumer commodities, or prescribe or specify by any means the manner in which such consumer commodities are packaged or labeled. (c) Each packaged or labeled consumer commodity, unless it has been exempted through proceedings under section 5(b) of the Act (15 U.S.C. 1454(b)), shall, upon being prepared for distribution in commerce or for sale at retail, and before being distributed in commerce or offered for sale at retail, be labeled in accordance with the requirements of the Act and the regulations in this part. (d) Each packaged or labeled consumer commodity, unless it has been exempted through proceedings under section 5(b) of the Act, shall bear a label specifying the identity of the commodity; the name and place of business of the manufacturer, packer, or distributor; the net quantity of contents; and the net quantity per serving, use or application, where there is a label representation as to the number of servings, uses, or applications obtainable from the commodity. (e) Regulations will be promulgated by the Commission exempting particular consumer commodities from one or more of the requirements of section 4 of the Act and the regulations thereunder to the extent and under such conditions as are consistent with the declared policy of the Act whenever the Commission finds that, because of the nature, form, or quantity of the particular consumer commodity, or for other good and sufficient reasons, full compliance with all the requirements otherwise applicable is impracticable or is not necessary for the adequate protection of consumers. Proceedings for the promulgation of such exempting regulations may be commenced by the Commission upon its own initiative or pursuant to petition filed with the Secretary by any interested person or group stating reasonable grounds for the proposed exemption, pursuant to Section 1.15 of this chapter of the Commission's general procedures. § 500.4 Statement of identity. (a) The principal display panel of a consumer commodity shall bear a specification of the identity of the commodity. (b) Such specification of identity shall comprise a principal feature of the principal display panel, shall be in such type size and so positioned as to render it easily read and understood by the consumer, and shall be in lines generally parallel to the base on which the package or commodity rests as it is designed to be displayed. (c) Such specification of identity shall be in terms of:
(d) The specification of identity shall not be false, misleading, or deceptive in any respect. Ingredients or components which are not present in the commodity in a substantial or significantly effective amount may not be mentioned in the specification of identity; except that a component present in a formulation in substantial and effective amounts, but not present in the final product due to conversion or transformation into a different entity (which different entity is present in the final product), may be mentioned in the specification of identity. § 500.5 Name and place of business of manufacturer, packer or distributor. (a) The label of a consumer commodity shall specify conspicuously the name and place of business of the manufacturer, packer, or distributor. Where the consumer commodity is not manufactured by the person whose name appears on the label, the name shall be qualified by a phrase that reveals the connection such person has with such commodity; such as "Manufactured for ________," "Distributed by ," or any other wording that expresses the facts. (b) The requirement for declaration of the manufacturer, packer, or distributor shall in the case of a corporation be deemed to be satisfied only by the actual corporate name, which may be preceded or followed by the name of the particular division of the corporation. In the case of an individual, partnership, or association, the name under which the business is conducted shall be used. (c) The statement of the place of business shall include the street address, city, State, and Zip Code; however, the street address may be omitted if it is shown in a current city directory or telephone directory. (d) If a person manufactures, packs, or distributes a consumer commodity at a place other than his principal place of business, the label may state the principal place of business in lieu of the actual place where such consumer commodity was manufactured or packed or is to be distributed, unless such statement would be misleading. (e) Standard abbreviations may be used in complying with the requirements of this section. § 500.6 Net quantity of contents declaration, location. (a) The label of a consumer commodity shall bear a declaration of the net quantity of contents separately and accurately stated on the principal display panel. (b) The declaration of net quantity shall appear as a distinct item on the principal display panel, shall be separated (by at least a space equal to the height of the lettering used in the declaration) from other printed label information appearing above or below the declaration and, shall not include any term qualifying a unit of weight or mass, measure, or count such as "jumbo quart," "giant liter," "full gallon," "when packed," "minimum," or words of similar import. The declaration of net quantity shall be separated (by at least a space equal to twice the width of the letter "N" of the style of type used in the net quantity statement) from other printed label information appearing to the left or right of the declaration. However, the "e" mark shall not be considered to be a qualifying word or phrase and may be used as part of the statement of the net quantity of contents where warranted. When used, the "e" mark shall be at least 3 millimeters (approximately 1/8 in) in height. The declaration of net quantity of contents shall be placed on the principal display panel within the bottom 30 percent of the area of the label panel in lines generally parallel to the base on which the package or commodity rests as it is designed to be displayed: Provided, that:
§ 500.7 Net quantity of contents, method of expression. The net quantity of contents shall be expressed in terms of weight or mass, measure, numerical count, or a combination of numerical count and weight or mass, size, or measure so as to give accurate information regarding the net quantity of contents thereof, and thereby facilitate value comparisons by consumers. The net quantity of contents statement shall be in terms of fluid measure if the commodity is liquid, or in terms of weight or mass if the commodity is solid, semi-solid, or viscous, or a mixture of solid and liquid. If there is a firmly established general consumer usage and trade custom of declaring the contents of a liquid by weight or mass, or a solid, semi-solid, or viscous product by fluid measure, numerical count, and/or size, or (as in the case of lawn and plant care products) by cubic measure, it may be used, when such declaration provides sufficient information to facilitate value comparisons by consumers. The declaration may appear in more than one line of print or type. § 500.8 Units of weight or mass and measure. (a) Statements of weight or mass shall be in terms of both avoirdupois pound and ounce and SI metric kilograms, grams, or milligrams. (Examples of avoirdupois/metric declarations: "Net Wt 15 oz (425 g)" or "Net Wt 1 1/2 lbs (680 g)" or " 2.5 oz (70.8 g)"; examples of metric/avoirdupois declarations: "Net Mass 425 g (15 oz)" or "Net Mass 680 g (1 1/2 lbs)" or "100 g e (3.5 oz).") (b) Statements of fluid measure shall be in terms of both the U.S. gallon of 231 cubic inches and quart, pint, and fluid ounce subdivisions thereof and SI metric liters or milliliters and shall (except in the case of petroleum products, for which the declaration shall express the volume at 60 Fahrenheit (15.6 Celsius)) express the volume at 68 Fahrenheit (20 Celsius). (Examples of gallon/metric declarations: "Net 12 fl oz (354 mL)" or "Net Contents 1 gal (3.78 L)" or "8 fl oz (236 mL)"; examples of metric/gallon declarations: "Net 500 mL (1.05 pt)" or "Net Contents 1 L (1.05 qt).") (c) Statements of linear measure shall be in terms of both yards, feet, and inches and SI metric meters, centimeters, or millimeters. (d) Statements of measure of area shall be in terms of both square yards, square feet, and square inches and SI metric square meters, square decimeters, square centimeters, or square millimeters. (e) Statements of dry measure shall be in terms of both the U.S. bushel of 2,150.42 cubic inches and peck, dry quart, and dry pint subdivisions thereof and SI metric liters or milliliters. (f) Statements of cubic measure shall be in terms of both cubic yard, cubic foot, and cubic inch and SI metric cubic meters, cubic decimeters, or cubic centimeters. § 500.9 Units of weight or mass, how expressed. (a) The term "net weight" or "net mass" may be used in stating the net quantity of contents in terms of weight or mass. However, where the term "net weight" or "net mass" is not used, the quantity of contents shall always disclose the net quantity of contents. For example: "453 g (1 lb)" or "Net Wt 1 lb (453 g)" or "Net Mass 453 g (1 lb)". (b) With the exception of random packages, the statement of net quantity of contents in terms of avoirdupois weight shall be expressed as follows:
(c) If the net quantity of contents declaration appears on a random package it may, when the net weight exceeds 1 pound, be expressed in terms of pounds and decimal fractions of the pound carried out to not more than three decimal places. When the net weight does not exceed 1 pound, the declaration on the random package may be in terms of decimal fractions of the pound in lieu of ounces. (Examples: "Net Wt. 0.75 lb." and "Net Weight 1.05 pounds.") Such decimal declaration shall be exempt from the type size and placement requirements of section 4(a) of the Act if the accurate statement of net weight is presented prominently and conspicuously on the principal display panel of the package. The net quantity of contents declaration on a random package is not required to, but may include a statement in terms of the SI metric system carried out to not more than 3 decimal places. (d) It is sufficient to distinguish avoirdupois ounce from fluid ounce through association of terms. (Examples: "Net Wt. 6 oz." vs. "6 fl. oz." or "Net Contents 6 fl. oz.") § 500.10 Units of fluid measure, how expressed. (a) Use of the terms "net" or "net contents" is optional. (b) Declaration of net quantity of contents in terms of fluid measure shall be identified as such in each instance and the statement of U.S. gallon of 231 cubic inches and quart, pint, and fluid ounce subdivisions thereof shall be expressed as follows:
§ 500.11 Measurement of commodity length, how expressed. Declaration of net quantity in terms of yards, feet, and inches shall be expressed as follows: (a) If less than 1 foot, in terms of inches and fractions thereof. (b) If 1 foot or more, in terms of the largest whole unit (a yard or foot) with any remainder in terms of inches or common or decimal fractions of the foot or yard, except that it shall be optional to express the length in the preceding manner followed by a statement of the length in terms of inches. § 500.12 Measurement of commodities by length and width, how expressed. For bidimensional commodities (including roll-type commodities) measured in terms of commodity length and width, the declaration of net quantity of contents shall be expressed in the following manner: (a) The declaration of net quantity for bidimensional commodities having a width of more than 4 inches (10.1 cm) shall:
(b) For bidimensional commodities having a width of 4 inches (10.16 cm) or less, the declaration of net quantity shall be expressed in terms of width and length in linear measure. The customary inch/pound statement of width shall be expressed in terms of linear inches and fractions thereof, and length shall be expressed in the largest whole unit (yard or foot) with any remainder in terms of the common or decimal fractions of the yard or foot, except that it shall be optional to express the length in the largest whole unit followed by a statement of length in inches or to express the length in inches followed by a statement of length in the largest whole unit. (Example: "2 inches x 10 yards (5.08 cm x 9.14 m)", "2 inches x 10 yards (360 inches) 5.08 cm x 9.14 m", or "2 inches x 360 inches (10 yards) 5.08 cm x 9.14 m".) § 500.13 Measurement of commodities by area measure only, how expressed. For commodities measured in terms of area measure only declaration of net quantity in terms of square yards, square feet, and square inches shall be expressed in the following manner: (a) If less than 1 square foot (929 cm2), in terms of square inches and fractions thereof. (b) If at least 1 square foot (929 cm2) but less than 4 square feet (37.1 dm2), in terms of square feet with any remainder in terms of square inches or common or decimal fractions of the square foot. (c) If 4 square feet (37.1 dm2) or more, in terms of the largest appropriate whole unit (square yards, square yards and square feet, or square feet) with any remainder in terms of square inches or common or decimal fractions of the square foot or square yard. § 500.14 Statements of cubic measure and dry measure. Statements of cubic measure and dry measure shall be expressed in terms most appropriate to the providing of accurate information as to the net quantity of contents, and to the facilitating of value comparisons by consumers. When the content declaration on a commodity sold in compressed form is stated in terms of cubic measure there may also be a statement indicating the amount of material from which the final product was compressed. Such statement shall not exceed the actual amount of material that can be recovered. § 500.15 Units of count, more than one ply. If the commodity is in distinct usable units made up of one or more components or ply, the statement of net quantity of contents shall (in addition to complying with the requirements of linear and area measurement declaration for each unit as specified in Section 500.12) include the number of ply and the total number of usable units. (Example: "100 2-ply facial tissues, 8 1/2 inches x 10 inches" (21.5 x 25.4 cm).) For the purposes of this section, roll type commodities (e.g. paper towels), irrespective of perforations, shall not be considered to be usable units, and shall be labeled in terms of total area measurement and the number of ply. Such area measurement, however, shall be supplemented by a count statement and the dimensions of a single unit. § 500.16 Measurement of container type commodities, how expressed. Notwithstanding other provisions of this Part 500 of the regulations pertaining to the expression of net quantity of contents by measurement, commodities designed and sold at retail to be used as containers for other materials or objects, such as bags, cups, boxes, and pans, shall be labeled in accordance with the following paragraphs: (a) The declaration of net quantity for container commodities shall be expressed as follows:
(b) When the functional use of the container is related by label reference in standard terms of measure to the capability of holding a specific quantity of substance or class of substances such references shall be a part of the net quantity statement and shall specify capacity as follows:
(c) Notwithstanding the above requirements, the net quantity statement for containers such as cups will be listed in terms of count and liquid capacity per unit. (Example: "24 cups, 6 fl. oz. capacity (177 mL)".) (d) For purposes of this section, the use of the terms "capacity," "diameter," and "fluid" is optional. (a) SI metric declarations of net quantity of contents of any consumer commodity may contain only decimal fractions. Other declarations of net quantity of contents may contain common or decimal fractions. A common fraction shall be in terms of halves, quarters, eighths, sixteenths, or thirty-seconds; except that:
(b) If a statement includes small fractions, smaller variations in the actual size or weight of the commodity will be permitted as provided in Section 500.25, than in cases where the larger fractions or whole numbers are used. The following chart indicates SI prefixes that may be used on a broad range of consumer commodity labels:
(a) For calculating the conversion of SI metric quantities to inch/pound quantities and inch/pound quantities to metric quantities, the factors in the following chart and none others shall be employed:
(b) The SI metric quantity declaration should be shown in three digits except where the quantity is below 100 grams, milliliters, centimeters, square centimeters or cubic centimeters, where it can be shown in two figures. In either case, any final zero appearing to the right of a decimal point need not be shown. (Examples: "1 lb (453 g)" not "1 lb (453.592 g)"; "Net Wt. 2 oz (56 g)" or "Net Wt 2 oz (56.6 g)" not "Net Wt. 2 oz (56.69 g)".) The statement of net quantity of contents shall appear in conspicuous and easily legible boldface type or print in distinct contrast (by typography, layout, color, embossing, or molding) to other matter on the package; except that a statement of net quantity blown, embossed, or molded on a glass or plastic surface is permissible when all label information is so formed on the surface. § 500.21 Type size in relationship to the area of the principal display panel. (a) The statement of net quantity of contents shall be in letters and numerals in a type size established in relationship to the area of the principal display panel of the package or commodity and shall be uniform for all packages or commodities of substantially the same size. For this purpose, "area of the principal display panel" means the area of the side or surface that bears the principal display panel, exclusive of tops, bottoms, flanges at tops and bottoms of cans, and shoulders and necks of bottles and jars. This area shall be:
(b) With area of principal display panel defined as above, the type size in relationship to area of that panel shall comply with the following specifications:
(c) Where the statement of net quantity of contents is blown, embossed, or molded on a glass or plastic surface rather than by printing, typing, or coloring, the lettering sizes specified in paragraph (b) of this section shall be increased by 1/16 of an inch (1.5 mm). (d) Letter heights pertain to upper case or capital letters. When upper and lower case or all lower case letters are used, it is the lower case letter "o" or its equivalent that shall meet the minimum standards. (e) The ratio of height to width of a letter shall not exceed a differential of 3 units to 1 unit (no more than 3 times as high as it is wide). (f) When fractions are used, each component shall meet one-half the minimum height standards. (g) The type size requirements specified in this section do not apply to the "e" mark. (See section 500.6(b).) (h) When upper and lower case or all lowercase letters are used in SI metric symbols, it is the uppercase "L," lowercase "d," or their equivalent in the print or type used that shall meet the minimum height requirement. Other letters and exponents must be presented in the same type style and in proportion to the type size used. However, no letter shall be less than 1.6 mm (1/16 inch) in height. The following abbreviations and none other may be employed in the required net quantity declaration:
Note: Periods and plural forms shall be optional. § 500.23 Expression of net quantity of contents in SI Metric units. (a) The selected multiple or submultiple prefixes for SI metric units shall result in numerical values between 1 and 1000, except that centimeters or millimeters may be used where a length declaration is less than 100 centimeters. For example, "1.96 kg" instead of "1960 g" and "750 mL" instead of "0.75 L". (b) The following symbols for SI metric units and none others may be employed in the required net quantity declaration:
Note: Symbols, except for liter, are not capitalized. Periods should not be used after the symbol. Symbols are always written in the singular form. § 500.24 Supplemental statements. Nothing contained in the regulations in this part shall prohibit supplemental statements, at locations other than the principal display panel, describing in non-deceptive terms the net quantity of contents: Provided that such supplemental statements of net quantity of contents shall not include any term qualifying a unit of weight or mass, measure, or count that tends to exaggerate the amount of commodity contained in the package. (Examples of prohibited language are: "Giant Quart," "Jumbo Liter," "Full Gallon," "When Packed," "Minimum," or words of similar import.) Required combination declarations of net quantity of contents (for example, a combination of net weight or mass plus numerical count, numerical count plus dimensions of the commodity, etc.) are not regarded as supplemental net quantity statements and shall be located on the principal display panel. Dilution directions or other similar directions for use are not regarded as supplemental net quantity statements and may be located on the principal display panel. Size characterizations in compliance with standards promulgated under section 5(c)(1) of the Act may appear on the principal display panel. § 500.25 Net quantity, average quantity, permitted variations. (a) The statement of net quantity of contents shall accurately reveal the quantity of the commodity in the container exclusive of wrappers and other material packed therewith: Provided, that in the case of a commodity packed in a container designed to deliver the commodity under pressure, the statement shall declare the net quantity of the contents that will be expelled when the instructions for use are followed. The propellant is included in the net quantity statement. (b) Variations from the stated weight or mass or measure shall be permitted when caused by ordinary and customary exposure, after the commodity is introduced into interstate commerce, to conditions which normally occur in good distribution practice and which unavoidably result in change of weight or mass or measure. (c) Variations from the stated weight or mass, measure, or numerical count shall be permitted when caused by unavoidable deviations in weighing, measuring, or counting the contents of individual packages which occur in good packaging practice: Provided, that such variations shall not be permitted to such extent that the average of the quantities in the packages comprising a shipment or other delivery of the commodity is below the quantity stated, and no unreasonable shortage in any package will be permitted even though overages in other packages in the same shipment or delivery compensate for such shortage. Variations from stated quantity of contents shall not be unreasonably large. § 500.26 Representations of servings, uses, applications. (a) The label of any packaged consumer commodity which bears a representation as to the number of servings, uses, or applications of such commodity contained in such package shall bear in immediate conjunction therewith, and in letters the same size as those used for such representations, a statement of the net quantity (in terms of weight or mass, measure, or numerical count) of each such serving, use, or application: Provided, that such statement may be expressed in terms that differ from terms used in the required statement of net contents (e.g., cupsful, tablespoonful, etc.), when such differing terms describe a constant quantity. Such statement may not be misleading in any particular. (b) Representations as to the total amount of object or objects to which the commodity may be applied or upon which or in which the commodity may be used, will not be considered to be representations as to servings, uses, or applications, if such amount is expressed in terms of standard units of weight or mass, measure, size, or count. (c) If there exists a voluntary product standard promulgated pursuant to the procedures found in Part 10, Title 15, Code of Federal Regulations, by the Department of Commerce, quantitatively defining the meaning of the terms "serving," "use," or "application" with respect to a particular consumer commodity, then any label representation as to the number of servings, uses, or applications in such packaged consumer commodity shall correspond with such quantitative definition. (Copies of published standards will be available upon request from the National Institute of Standards and Technology, Department of Commerce, Washington, D.C. 20899.) (a) A multiunit package is a package intended for retail sale, containing two or more individual packaged or labeled units of an identical commodity in the same quantity. The declaration of net quantity of contents of a multiunit package shall be expressed as follows:
(b) The individual packages or labeled units of a multiunit package, when intended for individual sale separate from the multiunit package, shall be labeled in compliance with the regulations under this Part 500 applicable to that package. (c) A multiunit package containing unlabeled individual packages which are not intended for retail sale separate from the multiunit package may contain, in lieu of the requirements of Paragraph (a) of this section, a declaration of quantity of contents expressing the total quantity of the multiunit package without regard for inner packaging. For such multiunit packages it shall be optional to include a statement of the number of individual packages when such a statement is not otherwise required by the regulations. EXAMPLES: Deodorant Cakes: "5 Cakes, Net Wt. 4 ozs. (113 g) each, Total Net Wt. 1.25 lb. (566 g)" or "5 Cakes, Total Net Wt. 1 lb. 4 ozs. (566 g)"; Soap Packets: "10 Packets, Net Wt. 2 ozs. (56.6 g) each, total Net Wt 1.25 lb. (566 g)" or "Net Wt 1 lb. 4 ozs. (566 g)" or "10 Packets, Total Net Wt. 1 lb. 4 ozs. (566 g)." (a) A variety package is a package intended for retail sale, containing two or more individual packages or units of similar but not identical commodities. Commodities which are generically the same but which differ in weight or mass, measure, volume, appearance or quality are considered similar but not identical. The declaration of net quantity for a variety package will be expressed as follows:
(b) When the individual units in a variety package are either packaged or labeled and are intended for retail sale as individual units, each unit shall be labeled in compliance with the applicable regulations under this Part 500. § 500.29 Combination packages. (a) A combination package is a package intended for retail sale, containing two or more individual packages or units of dissimilar commodities. The declaration of net quantity for a combination package will contain an expression of weight or mass, volume, measure or count or a combination, thereof, as appropriate for each individual package or unit: Provided, that the quantity statements for identical packages or units shall be combined.
(b) When the individual units in a combination package are either packaged or labeled and are intended for retail sale as individual units, each unit shall be in compliance with the applicable regulations under this Part 500. By direction of the Commission. Donald S. Clark 1. 58 FR 43726. 2. In developing the proposed amendments that were published in the NPR, the Commission's staff consulted with the staffs of other relevant agencies to harmonize requirements. The amendments the Commission adopts today are consistent with the proposed metric amendments to food labeling rules contained in a Notice of Proposed Rulemaking issued by the FDA on May 21, 1993 (58 FR 29719). As of the date of this FTC Statement of Basis and Purpose, the FDA has issued no final rules for any of the products it regulates under the FPLA. 3. 15 U.S.C. 1459(a). 4. 15 U.S.C. 1454(c). 5. 15 U.S.C. 1455(b). 6. See, "The International System of Units (SI)," NIST Special Publication 330, U.S. Department of Commerce, August, 1991; "Guide for the Use of the International System of Units," NIST Special Publication 811, U.S. Department of Commerce, September, 1991; and "Preferred Metric Units for General Use by the Federal Government," Federal Standards 376B (Preprint Copy), General Services Administration, January 27, 1993. 7. All public comments are filed in the Commission's Rulemaking Record P938902. In this notice, comments are cited by an identification of the commenter, the comment number assigned by the Secretary of the Commission, and the relevant page number(s), e.g., "NCWM, 19, 3." 8. NCWM, 19, 5 9. Berk, 1, 1-2. 10. Section II 3 C, supra. 11. "Preferred Metric Units for General Use by the Federal Government," Federal Standard 376B, General Services Administration, January 27, 1993; "Guide for the Use of the International System of Units," NIST Special Publication 811, U.S. Department of Commerce, September, 1991; and "The International System of Units (SI)," NIST Special Publication 330, U.S. Department of Commerce, August 1991. 12. NIST, 12, 1 13. NCWM, 19, 4. 14. NIST, 12, 1. 15. The emphasized words were added by the 1992 amendments. 16. Mich Ag, 6, 1. 17. NCWM, 19, 1. 18. NIST commented that the use of an inch declaration to three decimal places (the .118 inches used in the proposed amendment) was "superfluous." NIST, 12, 3. The Commission adopts NIST's suggestion to use "approx. 1/8 in." in the sentence. 19. Section 4(a)(2) of the 1992 amendments to the FPLA states that the quantity of contents shall be stated using units "... of both the customary inch/pound system ... and ... the SI metric system." While the inch/pound system precedes the term SI metric in this phrase, there is little reason to infer a Congressional intent that this also be the order in which quantities are disclosed. The amended rules therefore leave this choice to manufacturers and distributors. 20. Buch, 11, 1; Md Ag, 15, 1; Mech, 7, 2; Mich Ag, 6, 2; Micr, 4, 2; Cong. Myers, 17, 3; NCWM, 19, 2; NIST, 12, 1; Pier, 2, 1; Soko, 8, 1; Stem, 13, 2; SMPS, 16, 1; and Woel, 3, 2. 21. Micro Motion, Inc. (Micr, 4, 2) objected to the imposition of a maximum number of digits that could be used. 22. Thus, § 500.19(b) states "(Examples: '1 lb (453 g)' not '1 lb (453.592 g)' or 'Net Wt. 2 oz (56 g)' or 'net Wt. 2 oz (56.6 g)' not 'Net Wt. 2 oz (56.69 g)'.)" 23. See, NIST, 12, 1. 24. Buch, 11, 2. 25. NCWM, 19, 2. 26. Mich Ag, 6, 2. 27. Mech, 7, 1. 28. Am, 14, 1; Bord, 9, 1; Md Ag, 5, 1; Mech, 7, 1; Mich Ag, 6, 2; Micr, 4, 1; NCWM, 19, 2; Pier, 2, 1; Soko, 8, 1; and Woel, 3, 1. 29. Section 500.6(a) also requires that the label on a consumer commodity bear the declaration of the net quantity of contents. The Commission felt it appropriate to restate the point at Section 500.9(a) to avoid any confusion. 30. PG, 10, 2. 31. NCWM, 19, 4. 32. NCWM, 19, 4; and PG, 10, 2. 33. Stem, 13, 3. 34. NCWN, 19, 5; and NIST, 12, 4. 35. See footnote 20, supra. 36. NCWM, 19, 2. 37. See the discussion of the "e" mark at Part III.A. and Part III.B. above. 38. Bord, 9, 3; Frst, 15, 1; NCWM, 19, 3; and Stem, 13, 6. 39. Section 500.21 imposes various requirements regarding type size in relation to the are of the principal display panel. 40. Firs, 15, 2. 41. NCWM, 19, 3. 42. Stem, 13, 6. 43. Bord, 9, 3. 44. "Guide for the Use of the International System of Units," NIST Special Publication 811, U.S. Department of Commerce, September, 1991; and "Preferred Metric Units for General Use by the Federal Government," Federal Standards 376B (Preprint Copy), General Services Administration, January 27, 1993. 45. Md Ag, 5, 1; Mech, 7, 2; Mich Ag, 6, 2; Micr, 4, 1; NCWM, 19, 3; Pier, 2, 1; Soko, 8, 2; and Woel, 3, 2. 46. Woel, 3, 2. 47. Soko, 8, 2. 48. Cram, 18, 1; and Cong. Meyers, 17, 2. 49. Cramer does not explain the basis for its cost estimates. 50. Cram, 18, 1. 51. Cong. Meyers, 17, 2. 52. However, in an effort "to allow ample time for industry to become aware of the metric labeling requirements, and to reduce the burden on industry and thus the cost of updating package labels," the Commission has determined not to take law enforcement actions against non-complying companies until November 8, 1994. See Part V., Enforcement Policy. 53. For instance, the regulations contain numerous examples of disclosures intended to assist manufacturers and distributors in designing labels. (See Part III.D., above.) Further, the regulations set out the measurement terms which should be used in making the quantity disclosures and contain a table which demonstrates how to convert from customary inch/pound units to SI metric units and vice versa. (See, Part III.M. and N.) Additionally, to reduce compliance costs, to reduce label clutter and to assist consumer understanding, the Commission in the amendments adopted today has reduced the degree of precision needed in making the SI metric content disclosure to three significant digits in most cases and two digits in others. (See Part III.N.) 54. Stem, 13, 3. 55. Cram, 18, 1; and Cong. Meyers. 56. Stem, 13, 3. 57. These comments are discussed in connection with Part IV.D. The Commission's Regulatory Review Program, above. 58. Further, whatever economic impact on small business, if any, that may come from metric measurement translation and disclosure is not the result of the proposed amendments to the regulations but is the consequence of the amendments to FPLA by Congress. 59. The FDA, based on studies it conducted to determine the economic impact of its nutritional labeling rules, stated that the metric amendments to its food labeling rules "... may have a significant economic impact on small businesses ..." in the food industry (58 FR 29719, May 21, 1993). The FTC does not have equivalent economic information on the myriad industries covered by the FTC regulations issued under the FPLA, although it sought such economic information in the NPR. 60. The National Conference on Weights and Measures is a voluntary standards-writing body whose members are State and local weights and measures officials and which has Federal Government, business, industry and consumer representatives. NCWM, 19, 1. 61. Id. at 6. 62. Id. 63. Further, the delay of enforcement gives companies time to learn about these amendments without subjecting them to the burden of litigation. All other aspects of the Commission's regulations issued under the FPLA will not be affected by the postponement of enforcement of the SI metric amendments. |
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