§311.1 Definitions. As used in this part: (a) Manufacturer means any person who re-refines or otherwise processes used oil to remove physical or chemical impurities acquired through use or who blends such re-refined or otherwise processed used oil with new oil or additives. (b) New oil means any synthetic oil or oil that has been refined from crude oil and which has not been used and may or may not contain additives. Such term does not include used oil or recycled oil. (c) Processed used oil means re-refined or otherwise processed used oil or blend of oil, consisting of such re-refined or otherwise processed used oil and new oil or additives. (d) Recycled oil means processed used oil that the manufacturer has determined, pursuant to section 311.4 of this part, is substantially equivalent to new oil for use as engine oil. (e) Used oil means any synthetic oil or oil that has been refined from crude oil, which has been used and, as a result of such use, has been contaminated by physical or chemical impurities. (f) Re-refined oil means used oil from which physical and chemical contaminants acquired through use have been removed. §311.2 Stayed or invalid parts. If any part of this rule is stayed or held invalid, the rest of it will remain in force. §311.3 Preemption. No law, regulation, or order of any State or political subdivision thereof may apply, or remain applicable, to any container of recycled oil, if such law, regulation, or order requires any container of recycled oil, which container bears a label in accordance with the terms of §311.5 of this part, to bear any label with respect to the comparative characteristics of such recycled oil with new oil that is not identical to that permitted by §311.5 of this part. §311.4 Testing. To determine the substantial equivalency of processed used oil with new oil for use as engine oil, manufacturers or their designees must use the test procedures that were reported to the Commission by the National Institute of Standards and Technology (“NIST”) on July 27, 1995, entitled "Engine Oil Licensing and Certification System," American Petroleum Institute (“API”) Publication 1509, Thirteenth Edition, January, 1995. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of API Publication 1509, "Engine Oil Licensing and Certification System," may be obtained from the American Petroleum Institute, 1220 L Street, NW., Washington, DC 20005, or may be inspected at the Federal Trade Commission, Public Reference Room, room 130, 600 Pennsylvania Avenue, NW., Washington, DC, or at the Office of the Federal Register,, 800 North Capitol Street NW., suite 700, Washington, DC. §311.5 Labeling. A manufacturer or other seller may represent, on a label on a container of processed used oil, that such oil is substantially equivalent to new oil for use as engine oil only if the manufacturer has determined that the oil is substantially equivalent to new oil for use as engine oil in accordance with the NIST test procedures prescribed under §311.4 of this part, and has based the representation on that determination. §311.6 Prohibited acts. It is unlawful for any manufacturer or other seller to represent, on a label on a container of processed used oil, that such oil is substantially equivalent to new oil for use as engine oil unless the manufacturer or other seller has based such representation on the manufacturer's determination that the processed used oil is substantially equivalent to new oil for use as engine oil in accordance with the NIST test procedures prescribed under §311.4 of this part. Violations will be subject to enforcement through civil penalties, imprisonment, and/or injunctive relief in accordance with the enforcement provisions of Section 525 of the Energy Policy and Conservation Act (42 U.S.C. 6395). SUBCHAPTER D-TRADE REGULATION RULES PART 403-DECEPTIVE USE OF Sec. 403.1 Facts regarding leakproof claims. 403.2 Deceptive character of the claims. 403.3 Arguments in opposition to the rule. 403.4 The rule. 403.5 Guarantees against damage from leakage. 403.6 Future product improvement. AUTHORITY: 38 Stat. 717, as amended; 15 U.S.C. 41-58. SOURCE: 29 FR 6535, May 20, 1964, unless otherwise noted. also caused or accelerated by continuous drainage of the current or by the use of a battery in a device which may short out or overheat the battery. Climatic conditions, such as heat or high humidity, may also induce battery leakage. Each year literally thousands of incidents of actual damage resulting from leakage of batteries described as "leakproof" and "guaranteed leakproof" are brought to the attention of battery manufacturers by consumers. Under these circumstances, it is concluded that battery leakage and damage therefrom occurs under those conditions of use to which consumers ordinarily subject dry cell batteries. leakproof $403.2 Deceptive character of the claims. (a) The terms leakproof, guaranteed leakproof and other words and terms of similar import as descriptive of dry cell batteries are currently used in labeling and advertising in the sale of such batteries in commerce, as "commerce" is defined in the Federal Trade Commission Act. Batteries so described are sold for use in a great number and variety of devices which employ batteries as functional component parts. (b) Despite efforts by dry cell battery manufacturers to eliminate electrolyte leakage, no dry cell batteries currently marketed and distributed are proof against such leakage. This is evidenced by, among other things, statements and statistics furnished by industry members, experts in the field of electrical power sources, marketers of battery operated devices and by consumers. Moreover, the fact that battery leakage does cause extensive damage to devices in which batteries are employed, and to other articles, such as carpet, clothing and furniture has not been disputed. (c) Although battery leakage may occur while a battery is being discharged, it is more likely to occur after the useful life of the battery has been expended. Consequently, damage from leakage often results from the failure of the user to remove the battery from a device after it has been discharged. Leakage and damage therefrom are The use of the terms leakproof and guaranteed leakproof and words and representations of similar import in the labeling and advertising of dry cell batteries constitutes a representation that the batteries so described will not leak, and has the capacity and tendency to lead purchasers to believe that there is no danger of leakage or damage resulting therefrom when batteries so described are used in any battery-powered device regardless of the adequacy of design of such device, the duration of use, or other conditions of usage which contribute to electrolyte leakage. Moreover, the use of such terms has the capacity and tendency to lead purchasers to believe that there is no need for periodic inspection of batteries so described. § 403.3 Arguments in opposition to the rule. (a) Many marketers offer a guarantee against damage resulting from leakage. The terms of the guarantee are usually set forth on the battery, and the obligation assumed by most marketers thereunder is to replace batteries and repair or replace any flashlights damaged by leakage. Some marketers voluntarily extend this guarantee to cover the repair or replacement of other devices or property damaged by leakage. It has been argued in opposition to the adoption of the rule that the consumer is adequately protected by scrupulous performance under such guarantees, and that marketers offering these benefits are entitled to call consumer attention thereto by the use of unequivocal "leakproof" claims. This argument is rejected since it is clear that the offering of guarantees and even voluntary performance by the guarantor beyond the scope of the guarantee cannot justify claims which attribute to a product qualities which it does not in fact possess. As to the contention that to disallow the use of "leakproof" representations would deprive consumers of the protection currently furnished them, the rule clearly states that it shall not be interpreted as prohibiting the offering of guarantees which provide for restitution in the event of damage from electrolyte leakage provided no representation is made that the batteries in question are proof against leakage. (b) It is further argued in opposition to the adoption of the rule that any prohibition of "leakproof" representations will remove the incentive of industry members to develop a genuinely leakproof dry cell battery. This argument is also rejected. By preventing use of such absolute claims as descriptive of batteries which are not proof against leakage, the rule should have the effect of encouraging members of the industry to develop batteries which are in fact leakproof. In the event such a battery should be constructed, the rule may be amended upon a proper showing to permit use of "leakproof" representations as descriptive of batteries having such "leakproof" construction. 8403.4 The rule. (a) On the basis of the foregoing, the Commission concludes that the practice of describing dry cell batteries as "leakproof", "guaranteed leakproof" or by similar representations has the capacity and tendency to mislead and deceive purchasers and prospective purchasers and to divert business from competitors who do not so describe their products. The Commission further concludes that this practice is violative of section 5 of the Federal Trade Commission Act, and that the public interest in preventing its use is specific and substantial. (b) Accordingly, for the purpose of preventing such unlawful practices, the Commission hereby promulgates, as a Trade Regulation Rule, its conclusions and determination that in connection with the sale of dry cell batteries in commerce, as "commerce" is defined in the Federal Trade Commission Act, the use of the word leakproof, the term guaranteed leakproof or any other word or term of similar import, or any abbreviation thereof, in advertising, labeling, marking or otherwise, as descriptive of dry cell batteries constitutes an unfair method of competition and an unfair or deceptive act or practice. The rule should not be interpreted as prohibiting manufacturers or other marketers from offering or furnishing guarantees which provide for restitution in the event of damage from electrolyte leakage provided no representation is made, directly or indirectly, that dry cell batteries will not leak. $403.6 Future product improvement. In the event any person develops a new or improved dry cell battery which he believes is in fact leakproof, he may apply to the Commission for an amendment to the rule or for other appropriate relief. The application shall be filed with the Secretary, Federal Trade Commission, and be accompanied by a full report of the data upon which the applicant relies to substantiate his claim that the battery is leakproof. The Commission will give public notice of the application and afford interested persons an opportunity to submit written data, views or arguments. The Commission in its discretion may also order such further proceedings as it deems to be necessary. If the Commission determines that the applicant's claim has been substantiated, it will issue an appropriate order amending the rule or taking such other action as may be warranted. PART 408-UNFAIR OR DECEPTIVE ADVERTISING AND LABELING OF CIGARETTES IN RELATION TO THE HEALTH HAZARDS OF SMOKING CROSS REFERENCE: For a statement of basis and purpose of Trade Regulation Rule, see 29 FR 8325 of July 2, 1964. [30 FR 9485, July 29, 1965] PART 410-DECEPTIVE ADVERTISING AS TO SIZES OF VIEWABLE PICTURES SHOWN BY TELEVISION RECEIVING SETS 8410.1 The Rule. In connection with the sale of television receiving sets, in commerce, as "commerce" is defined in the Federal Trade Commission Act, it is an unfair method of competition and an unfair and deceptive act or practice to use any figure or size designation to refer to the size of the picture shown by a television receiving set or the picture tube contained therein unless such indicated size is the actual size of the viewable picture area measured on a single plane basis. If the indicated size is other than the horizontal dimension of the actual viewable picture area such size designation shall be accompanied by a statement, in close connection and conjunction therewith, clearly and conspicuously showing the manner of measurement. NOTE 1: For the purposes of this part, measurement of the picture area on a single plane basis refers to a measurement of the distance extremities between the outer (sides) of the picture area which does not take into account the curvature of the tube. NOTE 2: Any referenced or footnote disclosure of the manner of measurement by means of the asterisk or some similar symbol does not satisfy the "close connection and conjunction" requirement of this part. Examples of proper size descriptions when a television receiving set shows a 20-inch picture measured diagonally, a 19-inch picture measured horizontally, a 15-inch picture measured vertically, and a picture area of 262 square inches include: "20 inch (50.80 cm) picture measured diagonally" or "20 inch (50.80 cm) diagonal" "19 inch x 15 inch (48.26 cm x 38.10 cm) picture" or "19 inch (48.26 cm) picture" or "19 inch (48.26 cm)” or "262 square inch (1,690.32 cm. sq.) picture." Examples of improper size descriptions of a television set showing a picture of the size described above include: "21 inch (53.34 cm) set" or "21 inch (53.34 cm) diagonal set" or NOTE 3: The numbers in parentheses reflect the metric equivalent of the English measurements. They are provided for information purposes only, and are not required to be included in the disclosures. (38 Stat. 717, as amended, 15 U.S.C. 41-58) [36 FR 21518, Nov. 10, 1971; 36 FR 22286, Nov. 24, 1971; as amended at 59 FR 54812, Nov. 2, 1994] |