Designation of Landscaping Material by Volume on Containers, In a previous advisory opinion the Commission…

No. 401. Designation of Landscaping Material by Volume on Containers, In a previous advisory opinion the Commission advised that to designate the contents on containers of landscaping material by cubic measurement rather than by weight would be objectionable under Section 5, Federal Trade Commission Act.

The proposal considered involved the marketing of a processed clay material in physical form varying from pieces of approximately 2 inches down to 44> of an inch in diameter for use as a landscaping material, particularly around shrubs, trees, walkways and other nongrassed areas. Because the density of the product by volume is less and the area of coverage by weight greater than competing materials used for the same purpose it was represented that it would be more beneficial and informative to consumers to stipulate the container contents in cubic measurement instead of by the traditional contents by weight designation. Specifically, the Commission was asked: May the product be marketed by showing the contents of the bags in which it is contained by way of cubic measurement and not by weight, leaving off all reference to weight? Also, may the area the material will cover in square inches, feet, or yards to a specified depth be shown on the bags? The Commission expressed the view that the product, being used mainly for ground covering purposes, is classified as a type of lawn and garden commodity and as such is not considered a “consumer commodity” as defined by the Fair Packaging and Labeling Act. Whether the proposed labeling would be an unfair or deceptive act must, therefore, be tested against the criteria of Section 5, FTC Act. Controlling in matters of this nature is whether the proposed course of action is fair to consumers according to recognized principles, not that it might be unfair according to tradition and the morals of the market place. The concept of “Unfair or deceptive acts or practices” stresses business integrity, encourages legitimate trading, and protects consumers against commercial spoliation.

The Commission expressed the view that it would be more beneficial and informative to consumers if the contents were designated on the product containers by both weight and volume. Although not essential, it would also be beneficial and informative to consumers if the extent of area coverage to a predetermined depth by weight and by volume were included in such content designation. The Commission further advised that its opinion is confined to so much of the request as falls within its jurisdiction and the extent, if any, to which another governmental agency, either local, State, or Federal, may be concerned is a matter to be determined by reference to that agency. (File No. 703 7037, released Jan. 19, 1970.)