Request for revision of advisory opinion pertaining to use of the word "new The Commission was requested to…

No. 146. Request for revision of advisory opinion pertaining to use of the word "new The Commission was requested to reconsider and revise its advisory opinion as to the permissible period of time during which an advertiser may continue to describe a new product as being "new." The opinion in question was announced in Advisory Opinion Digest No. 120 '71 F. C. 1729J and took the position that unti such time as later developments may show the need for a different rule, the Commission would be inclined to question use of any claim that a product was new for a longer period of time than six months.

The request was that the Commission revise this opinion to omit specifying any time limit or, in the alternative, to specify a period of at least one year, with the same proviso as was written into the present opinion that exceptional circumstances may warrant a longer or shorter period. In response to this request, the Commission stated its basic conclusion that the general rule announced in the opinion, which was announced as the rule which would be fo1Jowed until later developments might show the need for a different rule, has not been in existence long enough for the accumulation of any additional experience which would indicate the need for a change at this time.

However, the Commission did take note of the argument that six months is not adequate time for test marketing new products, which are usua1Jy tested in areas representing between 1 and 15 percent of the population and run for an average of six months to two years. In this regard, the Commission advised that the six months rule announced in its previous opinion does not apply to the bona fide test marketing of a new product. So long as the test marketing program does not cover more than 15 percent of the population, so long as the test period does not exceed six months in duration and so long as it is being conducted in good faith for test purposes only, the Commission stated that it did not intend to apply the six months rule until the test period had ended and the product had been introduced to the general market. The requesting party had further contended that the time selected was not long enough to cover the average life of packaging: materials and advertising literature and thus would necessitate scrapping such materials after the time had expired. With respect to this point, the Commission stated that while it was always anxious to minimize such losses to advertisers whenever it could do so consistently with its duty to protect the public from deception. it would seem that here the advertiser is peculiarly in control of the situation and able to protect himself against being caught with a large inventory of such materials on hand. When an advertiser introduces a new product to the market he is at that time on notice that the claim "new" can remain valid for only a temporary period of time and he is at that time charged with the responsibility of preparing only so much material containing the word as can be used within the period of time. during which the product can accurately be described as new. Even granting that one cannot predict with mathematical accuracy how fast the inventory wil be consumed, stil one experienced in such matters should be able to predict with reasonable accuracy how much wil be needed for six months use and be prepared to discontinue use of such material at the end of that time without the loss of significant amounts.

Finally, the Commission stated that it had announced in its first advisory opinion on this subject (Advisory Opinion No. 120) that shorter or longer periods of time would be considered for particular products upon a showing that such different period was more appropriate for the product in question. No such showing had been made on this application warranting the Commission to make any change in its announced time period. (File No. 683 7017 released Oct. 24, 1967.