Guides For The Nursery Industry

16 CFR Part 18 · Guides · in the Code of Federal Regulations 1980-1995 (16 annual editions)

Scanned CFR pages, OCR text may contain errors; the linked Library of Congress PDF is the authority. Not legal advice; not affiliated with the FTC. These rules and guides are historical: most were rescinded or replaced, so do not assume any is in force.

Latest edition: Library of Congress, 1995 CFR · Earliest edition: 1980 CFR

Text (1995 edition, OCR)

Federal Trade Commission

§ 18.1

SUBCHAPTER B—GUIDES AND TRADE PRACTICE RULES

PART 17—APPLICATION OF GUIDES
IN PREVENTING UNLAWFUL
PRACTICES

NOTE: Industry guides are administrative
interpretations of laws administered by the
Commission for the guidance of the public in
conducting its affairs in conformity with
legal requirements. They provide the basis

for voluntary and simultaneous abandon- ~

ment of unlawful practices by members of
industry. Failure to comply with the guides
may result in corrective action by the com-
mission under applicable statutory provi-
sions. Guides may relate to a practice com-
mon to many industries or to specific prac-
tices of a particular industry.

(Sec. 6(g), 38 Stat. 722; (15 U.S.C. 46(g))
(44 FR 11176, Feb. 27, 1979)

PART 18—-GUIDES FOR THE
NURSERY INDUSTRY

Sec.
18.0
18.1
18.2
18.3
18.4
18.5

Definitions.

‘Deception (general).

Deception through use of names.

Substitution of products.

Size and grade designations.

Deception as to blooming, fruiting, or
growing ability.
18.6 Plants collected from the wild state.
18.7 Misrepresentation as to character of

business. .

18.8 Deception as to origin or source of in-
dustry products.

AUTHORITY: Secs. 5, 6 FTC Act; 38 Stat. 719,
721; 15 U.S.C. 45, 46.

Source: 44 FR 11177, Feb. 27, 1979, unless
otherwise noted.

$18.0 Definitions.

Industry products. As used in this
part, the term “industry products” in-
cludes all types of trees, small fruit
plants, shrubs, vines, ornamentals, her-
baceous annuals, biennials and
perennials, bulbs, corms, rhizomes, and
tubers which are offered for sale or sold
to the general public. Included are
products propagated sexually or
asexually and whether grown in a com-
mercial nursery or collected from the
wild state. Such products are cus-
tomarily used for outdoor planting.
Not included are florists’ or greenhouse

plants solely for inside culture or use
and annual vegetable plants.

Industry members. Any person, firm,
corporation, or organization engaged in
the sale, offering for sale, or distribu-
tion in commerce of industry products,
as defined above.

Lining-out stock. Includes all plant
material coming from propagating
houses, beds, or frames, and young ma-
terial such as seedlings rooted or
unrooted cuttings, grafts or layers, of
suitable size to transplant either in the
nursery row or in containers for ‘‘grow-
ing on.”

Nursery-grown stock. Plants propa-
gated and grown under cultivation, or
plants transplanted from the wild and
grown under cultivation for at least
one full growing season.

Nursery-propagated. Reproduced and
grown under cultivation, including re-
produced and grown under cultivation
from plants, seeds or cuttings lawfully
collected from the wild state.

Propagated. Reproduced from seeds,
cuttings, callus or other plant tissue,
spores or other propagules under a con-
trolled environment that is intensely
manipulated by human intervention
for the purpose of producing selected
species or hybrids.

(44 FR 11177, Feb. 27, 1979, as amended at 59
FR 64549, Dec. 14, 1994)

EFFECTIVE DATE NOTE: At 59 FR 64549, Dec.
14, 1994, §18.0 was amended by removing the
definition of ‘‘nursery-grown stock’’ and by
adding definitions of ‘“‘nursery-propagated”’
and ‘‘propagated” effective February 13, 1995.

$18.1 Deception (general).

(a) It is an unfair or deceptive act or
practice to sell, offer for sale, or dis-
tribute industry products by any meth-
od or under any circumstance or condi-
tion that misrepresents directly or by
implication to purchasers or prospec-
tive purchasers the products with re-
spect to quantity, size, grade, kind,
species, age, maturity, condition,
vigor, hardiness, number of times
transplanted, growth ability, growth
characteristics, rate of growth or time
required before flowering or fruiting,
price, origin or place where grown, or

123


§ 18.2

any other material aspect of the indus-
try product.

(b) The inhibitions of this section
shall apply to every type of advertise-
ment or method of representation,
whether in newspaper, periodical, sales
catalog, circular, by tag, label or insig-
nia, by radio or television, by sales rep-
resentatives, or otherwise.

(c) Among practices inhibited by the
foregoing are direct or indirect rep-
resentations:

(1) That plants have been propagated
by grafting or bud selection methods,
when such is not the fact.

(2) That industry products are
healthy, will grow anywhere without
the use of fertilizer, or will survive and
produce without special care, when
such is not the fact.

(3) That plants will bloom the year
round, or will bear an extraordinary
number of blooms of unusual size or
quality, when such is not the fact.

(4) That an industry product is a new
variety, when in fact it is a standard
variety to which the industry member
has given a new name.

(5) That an industry product cannot
be purchased through usual retail out-
lets, or that there are limited stocks
available, when such is not the fact.

(6) That industry products offered for
sale will be delivered in time for the
next (or any specified) seasonal plant-
ing when the industry member is aware
of factors which make such delivery
improbable.

(1) That the appearance of an indus-
try product as to size, color, contour,
foliage, bloom, fruit or other physical
characteristic is normal or usual when
the appearance so represented is in fact
abnormal or unusual.

(8) That the root system of any plant
is larger in depth or diameter than
that which actually exists, whether ac-
complished by excessive packaging ma-~
terial, or excessive balling, or other de-
ceptive or misleading practice.

(9) That bublets are bulbs.

(10) That an industry product is a
rare or unusual item when such is not
the fact. (Guide 1}

(44 FR 11177, Feb. 27, 1979, as amended at 59
FR 4549, Dec. 14, 1994}

EFFECTIVE DATE NOTE: At 59 FR 64549, Dec.
14, 1994, §18.1 was amended by revising para-
graph (a) effective February 13, 1995. For the

16 CFR Ch. | (1-1-95 Edition)

convenience of the user, the superseded text
is set forth below.

$181 Deception (general).

(a) It is an unfair trade practice to sell,
offer for sale, or distribute industry products
by any method, or under any circumstance
or condition, which has the capacity and
tendency or effect of deceiving purchasers or
prospective purchasers as to quantity, size,
grade, kind,. species, age, maturity, condi-
tion, vigor, hardiness, number of times
transplanted, growth ability, growth charac-
teristics, rate of growth or time required be-
fore flowering or fruiting, price, origin or
place where grown, or in any other material
respect.

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§18.2 Deception through use of names.

(a) In the sale, offering for sale, or
distribution of an industry product, it
is an unfair or deceptive act or practice
for any industry member to use a name
for such product that misrepresents di-
rectly or by implication to purchasers
or prospective purchasers its true iden-
tity.

(b) Subject to the foregoing:

(1) When an industry product has a
generally recognized and well-estab-
lished common name, it is proper to
use such name as a designation there-
for, either alone or in conjunction with
the correct botanical name of the prod-
uct.

(2) When an industry product has a
generally recognized and well-estab-
lished common name, it is an unfair or
deceptive act or practice for an indus-
try member to adopt and use a new
name for the product unless such new
hame is immediately accompanied by
the generally recognized and well-es-
tablished common name, or by the cor-
rect botanical name, or by a descrip-
tion of the nature and properties of the
product which is of sufficient detail to
prevent confusion and deception of pur-
chasers or prospective purchasers as to
the true identity of the product.

(3) When an industry product does
not have a generally recognized and
well-established common name, and a
name other than the correct botanical
name of the product is applied thereto,
such other name shall be immediately
accompanied by either the correct bo-
tanical name of the product, or a de-
scription of the nature and properties

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Federal Trade Commission

of the product which is of sufficient de-
tail as to prevent confusion and decep-
tion of purchasers and prospective pur-
chasers as to the true identity of the
product.

NOTE: Industry recommendation. The indus-
try recommends that in administering the
guide in this section the Commission give
consideration to the use of plant names list-
ed in such works as Checklist of Woody Or-
namental Plants of California, 1977, Univer-
sity of California; Hillier’s Manual of Trees
and Shrubs, 1971, Hillier & Sons; Manual of
Cultivated Conifers, 1965, P. Den Ouden & B.
K. Boom; Hortus II, 1976, L. H. Bailey
Hortorium; Naming and Registering New
Cultivars, 1974, American Association of
Nurserymen, Inc.; and to plant name lists pe-
riodically published by the plant societies
and the horticultural organizations selected
as international and national cultivar reg-
istration authorities as enumerated in Ap-
pendix of Naming and Registering New
Cultivars. [Guide 2]

[44 FR 11177, Feb. 27, 1979, as amended at 59
FR 64549, Dec. 14, 1994]

EFFECTIVE DATE NOTE: At 59 FR 64549, Dec.
14, 1994, §18.2 was amended by revising para-
graphs (a) and (b)(1) and (2) effective Feb-
ruary 13, 1995. For the convenience of the
user, the superseded text is set forth below.

$182 Deception through use of names.

(a) In the sale, offering for sale, or dis-
tribution of an industry product, it is an un-
fair trade practice for any industry member
to use a name for such product which has the
capacity and tendency or effect of deceiving
purchasers or prospective purchasers as to
its true identity.

(b) Subject to the foregoing: (1) When an
industry product has a generally recognized
and well-established common name, it is
proper to use such name as a designation
therefor, either alone or in conjunction with
the correct botanical name of the product.

(2) When an industry product has a gen-
erally recognized and well-established com-
mon name, it is an unfair trade practice for
an industry member to adopt and use a new
name for the product unless such new name
is immediately accompanied by the gen-
erally recognized and well-established com-
mon name, or by the correct botanical name,
or by a description of the nature and prop-
erties of the product which is of sufficient
detail to prevent confusion and deception of
purchasers or prospective purchasers as to
the true identity of the product.

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§ 18.3

$18.3 Substitution of products.

With respect to industry products of-
fered for sale by an industry member,
it is an unfair or deceptive act or prac-
tice for any member of the industry:

(a) To ship or deliver industry prod-
ucts which do not conform to represen-
tations made prior to securing the
order or to specifications upon which
the sale is consummated, without ad-
vising the purchaser of the substi-
tution and obtaining the purchaser’s
consent thereto prior to making ship-
ment or delivery, where failure to ad-
vise would be misleading to purchasers;
or

(b) To falsely represent the reason for
making a substitution: Provided, how-
ever, That nothing in this section is in-
tended to inhibit the shipment of prod-
ucts different from those ordered, prior
to obtaining the purchaser’s consent to
such substitution, when the order is re-
ceived by the industry member near
the close of the planting season for the
products ordered and the substitution
involved relates but to a product or
products the total price of which is
comparatively small, and when:

(1) At the commencement of the
planting season for the products or-
dered the industry member had a sup-
ply of such products sufficient to meet
normal and reasonably expected orders
therefor, and such supply has been ex-
hausted; and

(2) The products substituted are of
similar variety and of equal or greater
value to those ordered by the purchaser
and no additional charge is made there-
for; and

(3) Notice of the substitution, with
adequate identification of the sub-
stituted item or items, and with com-
mitment of the industry member to re-
fund any purchase price received for
the substituted products if such prod-
ucts are not acceptable to the pur-
chaser and to compensate the pur-
chaser for any expense involved in the
return of the substituted products if re-
fund is conditioned on the return
thereof, is given the purchaser at the
time of his receipt of such products:
And provided further, That nothing in
this section is to be construed as sanc-
tioning the dissemination of an adver-
tisement of an industry product or
products or the personal solicitation of

125


§ 184

orders therefor unless at the time of
such dissemination or solicitation the
industry member has a supply of such
product or products sufficient to meet
normal] and reasonably expected orders
therefor. [Guide 3)

(44 FR 11177, Feb. 27, 1979, as amended at 59
FR 64549, Dec. 14, 1994]

EFFECTIVE DATE NOTE: At 59 FR 64549, Dec.
14, 1994, §18.3 was amended by revising the
introductory text and paragraph (a) effective
February 13, 1995. For the convenience of the
user, the superseded text is set forth below.

$18.3 Substitution of products.

With respect to industry products offered
for sale by an industry member, it is an un-
fair trade practice for any member of the in-
dustry:

(a) To ship or deliver industry products
which do not conform to representations
made prior to securing the order or to speci-
fications upon which the sale is con-
summated, without advising the purchaser of
the substitution and obtaining his consent
thereto prior to making shipment or deliv-
ery, where such practice has the capacity
and tendency or effect of misleading or de-
ceiving purchasers or prospective purchasers;
or

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$18.4 Size and grade designations.

(a) In the sale, offering for sale, or
distribution of industry products, it is
an unfair or deceptive act or practice
for an industry member to use any
term, designation, number, letter,
mark, or symbol as a size or grade des-
ignation for any industry product in a
manner or under any circumstance
that misrepresents directly or by im-
plication to purchasers or prospective
purchasers the actual size or grade of
such products.

(b) Under this section industry mem-
bers offering lining-out stock for sale
shall specify conspicuously and accu-
rately the size and age of such stock
when failure to do so may misrepresent
directly or by implication such stock
to purchasers or prospective pur-
chasers.

(c) Nothing in this section is to be
construed as inhibiting the designation
of the size or grade of an industry prod-
uct by use of a size or grade designa-
tion for which a standard has been es-
tablished which is generally recognized
in the industry when the identity of

16 CFR Ch. | (1-1-95 Edition)

such standard is conjunctively dis-
closed, the product qualifies for the
designation under such standard, and
no deception of purchasers or prospec-
tive purchasers results in the use of
such designation.

Nore: It is the consensus of the industry
that the grade and size standard set forth in
the current edition of American Standard for
Nursery Stock, ANSI Z60.1, as approved by
the American National Standard Institute,
Inc., is generally recognized in the industry,
and that use of the size and grade designa-
tion therein set forth, in accordance with the
requirements of the standard for the designa-
tions, in the marketing of industry products
to which such standard relates, will prevent
deception and confusion of purchasers and
prospective purchasers of such products.
(Guide 4]

(44 FR 11177, Feb. 27, 1979, as amended at 59
FR 64549, Dec. 14, 1994]

EFFECTIVE DATE NOTE: At 59 FR 64549, Dec.
14, 1994, §18.4 was amended by revising para-
graphs (a) and (b) effective February 13, 1995.
For the convenience of the user, the super-
seded text is set forth below.

§18.4 Size and grade designations.

(a) In the sale, offering for sale, or dis-
tribution of industry products, it is an unfair
trade practice for an industry member to use
any term, designation, number, letter, mark
or symbol, as a size or grade designation for
any industry product in a manner or under
any circumstance having the capacity and
tendency or effect of deceiving purchasers or
prospective purchasers with respect to the
actual size or grade of such products.

(b) Under this section industry members
offering lining-out stock for sale shall speci-
fy conspicuously and accurately the size and
age of such stock when failure to do so has
the capacity and tendency or effect of de-
ceiving purchasers or prospective purchasers.

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$18.5 Deception as to blooming,
fruiting, or growing ability.

In the sale, offering for sale, or dis-
tribution of industry products, it is an
unfair or deceptive act or practice for
any industry member to misrepresent
directly or by implication to pur-
chasers or prospective purchasers the
ability of such products:

(a) To bloom, flower, or fruit within
a specified period of time; or

(b) To produce crops within a speci-
fied period of time, or to give multiple

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Federal Trade Commission

crops each year, or to produce crops in
unfavorable climatic regions; or

(c) To bear fruit through self-
pollinization; or

(a) To grow, flourish, and survive ir-
respective of the climatic conditions,
the care exercised in or after planting,
or the soil characteristics of the locail-
ity in which they are to be planted.

NOTE 1: Under this section, when flower
bulbs are of such immaturity as not reason-
ably to be expected to bloom and flower the
first season of their planting, such fact shall
be clearly and conspicuously disclosed in all
advertisements and sales promotional lit-
erature relating to such products: Provided,
however, That such disclosure need not be
made when sales are confined to nurseries
and commercial growers for their use as’
planting stock.

NOTE 2: Under this section, in order to
avoid deception of purchasers and prospec-
tive purchasers thereof, when rose bushes
have been used in a greenhouse for the com-
mercial production of cut flowers, they shall
be tagged or labeled so as to clearly, ade-
quately and conspicuously disclose such fact,
and such tags and labels shall be so attached
thereto as to remain thereon until con-
summation of consumer sale. A similar dis-
closure shall be made in all advertising and
sales promotional literature relating to such
products. And when, by reason of such pre-
vious greenhouse use or their condition at
the time of removal therefrom or their han-
dling during or subsequent thereto, there is
probability that such rose bushes will not
satisfactorily thrive and produce flowers
when replanted outdoors, or will satisfac-
torily thrive and produce flowers outdoors
only if given special treatment and attention
during and after their replanting, such fact
shall also be clearly, conspicuously, and
nondeceptively disclosed in close conjunc-
tion with, and in the same manner as, the
aforesaid required disclosure that such prod-
ucts have been used in a greenhouse for the
commercial production of cut flowers. [Guide
5]

(44 FR 11177, Feb. 27, 1979, as amended at 59
FR 64549, Dec. 14, 1994]

EFFECTIVE DATE NOTE: At 59 FR 64549, Dec.
14, 1994, §18.5 was amended by revising the
introductory text effective February 13, 1995.
For the convenience of the user, the super-
seded text is set forth below.

$185 Deception as to blooming, fruiting, or
growing ability.

In the sale, offering for sale, or distribu-

tion of industry products, it is an unfair

trade practice for any industry member to

§ 18.7

deceive purchasers or prospective purchasers
as to the ability of such products:

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$18.6 Plants collected from the wild
state.

It is an unfair or deceptive act or
practice to sell, offer for sale, or dis-
tribute industry products collected
from the wild state without disclosing
that they were collected from the wild
state; provided, however, that plants
propagated in nurseries from plants
lawfully collected from the wild state
may be designated as ‘‘nursery-propa-
gated.” (Guide 6]

[59 FR 64549, Dec. 14, 1994]

EFFECTIVE DATE NOTE: At 59 FR 64549, Dec.
14, 1994, §18.6 was revised effective February
13, 1995. For the convenience of the user, the
superseded text is set forth below.

$18.6 Plants collected from the wild state.

It is an unfair trade practice to sell, offer
for sale, or distribute industry products col-
lected from the wild state without disclosing
that they were collected from the wild state:
Provided, however, That if collected plants
are grown in the nursery row for at least one
growing season before being marketed, such
disclosure is not required. [Guide 6]

$18.7 Misrepresentation as to char-
acter of business.

(a) In the sale, offering for sale, or
distribution of industry products, it is
an unfair or deceptive act or practice
for any industry member to represent
itself directly or by implication to be a
grower or propagator of such products,
or any portion thereof, or to have any
other experience or qualification either
relating to the growing or propagation
of such products or enabling the indus-
try member to be of assistance to pur-
chasers or prospective purchasers in
the selection by them of the kinds or
types of products, or the placement
thereof, when such is not the fact, or in
any other manner to misrepresent di-
rectly or by implication the character,
nature, or extent of the industry mem-
ber’s business.

NOTE: Among practices subject to the inhi-
bitions of this section is a representation by
an industry member to the effect that he is
a landscape architect when his training, ex-
perience, and knowledge do not qualify him
for such representation.

127


§ 18.8

(b) It is also an unfair or deceptive
act or practice for an industry member
to use the word “guild,’”’ ‘‘club,” ‘“‘asso-
ciation,’’ “council,” “society,” ‘‘foun-
dation,” or any other word of similar
import or meaning, as part of a trade
name, or otherwise, in such a manner
or under such circumstances as to indi-
cate or imply that its business is other
than a commercial enterprise operated
for profit, unless such be true in fact,
or so as to deceive purchasers or pro-
spective purchasers in any other mate-
rial respect. [Guide 7]

_ (89 FR 64549, Dec. 14, 1994]

EFFECTIVE DATE NOTE: At 59 FR 64549, Dec.
14, 1994, §18.7 was revised effective February
18, 1995. For the convenience of the user, the
superseded text is set forth below.

$18.7 Misrepresentation as to character of
business.

(a) In the sale, offering for sale, or dis-
tribution of industry products, it is an unfair
trade practice for any industry member to
represent or imply that he is a grower or
propagator of such products or any portion
thereof, or that he has any other experience
or qualification either relating to the grow-
ing or propagation of such products or which
enables him to be of assistance to purchasers
or prospective purchasers in the selection by
them of the kinds or types of products or the
placement thereof when such is not the fact,
or in any other manner to misrepresent the
character, nature, or extent of his business.

NoTE: Among practices subject to the inhi-
bitions of this section are representations by
an industry member to the effect that he is
@ landscape architect when his training, ex-
perience, and knowledge do not qualify him
for such representation.

(b) It is also an unfair trade practice for an
industry member to use the word “guild,”
“club,” “‘association,’”’ “‘council,’’ ‘‘society,”
“foundation,” or any other word of similar
import or meaning, as part of a trade name,
or otherwise, in such a manner or under such
circumstances as to indicate or imply that
his business is other than a commercial en-
terprise operated for profit, unless such be
true in fact, or so as to deceive purchasers or
prospective purchasers in any other material
respect. [Guide 7]

$18.8 Deception as to origin or source
of industry products.

(a) It is an unfair or deceptive act or
practice to sell, offer for sale, or adver-
tise an industry product by misrepre-
senting directly or by implication the
origin or source of such product to pur-

16 CFR Ch. | (1-1-95 Edition)

chasers or prospective purchasers (e.g.,
by use of the term ‘Holland’ to de-
scribe bulbs grown in the U.S.A.); pro-
vided, however, that when a plant has
an accepted common name that incor-
porates a geographical term and such
term has lost its geographical signifi-
cance as so used, the mere use of such
common names does not constitute a
misrepresentation as to source or ori-
gin (e.g., ‘‘Colorado Blue Spruce,” “Ari-
zona Cypress,” “Black Hills Spruce,”
“California Privet,”’ ‘Japanese Bar-
berry,” etc.).

(b) It is also an unfair or deceptive
act or practice to advertise, sell, or
offer for sale an industry product of

- foreign origin without adequate and

non-deceptive disclosure of the name of
the foreign -country from which it
came, where the failure to make such
disclosure would be misleading to pur-
chasers or prospective purchasers.
(Guide 8]

(59 FR 64550, Dec. 14, 1994)

EFFECTIVE DATE NOTE: At 59 FR 64550, Dec.
14, 1994, §18.8 was revised effective February
13, 1995. For the convenience of the user, the
superseded text is set forth below.

$18.8 Deception as to origin or source of in-
dustry products.

(a) It is an unfair trade practice to sell,
offer for sale, or advertise an industry prod-
uct under any representation which has the
capacity and tendency or effect of deceiving
purchasers or prospective purchasers as to
the origin or source of such product (¢.g., by
use of the term “Holland” to describe bulbs
which were grown in the U.S.A.): Provided,
however, That when a plant has an accepted
common name .which incorporates a geo-
graphical term and such term has lost its
geographical significance as so used, the
mere use of such common names does not
constitute a misrepresentation as to source
or origin (e.g., ‘‘Colorado Blue Spruce,” “Ar-
izona Cypress,” ‘“Black Hills Spruce,” “Cali-
fornia Privet,” “Japanese Barberry,” etc.).

(b) It is also an unfair trade practice to ad-
vertise, sell, or offer for sale an industry
product of foreign origin without adequate
and nondeceptive disclosure of the name of
the foreign country from which it came,
where the failure to make such disclosure
has the capacity and tendency or effect of
deceiving purchasers or prospective pur-
chasers. [Guide 8)

128