Guides for the Nursery Industry; Final Rule FEDERAL TRADE COMMISSION

SUMMARY: The Federal Trade Commission (the ``Commission''), as part of

its periodic review of all its guides and rules, announces that it has

concluded a review of its Guides for the Nursery Industry (``Guides''

or ``Nursery Guides'') and has decided to retain them with certain

modifications. Specifically, the Commission has decided to amend Guide

6 and the definitions section of the Guides to advise sellers of plants

that it is an unfair or deceptive act or practice to offer for sale or

to sell plants collected from the wild state without disclosing that

fact, with the proviso that plants propagated from plants lawfully

collected from the wild state may be designated as ``nursery-

propagated.'' The Commission has also decided to amend Guides 1-8 to

update their legal terminology with terms that the Commission presently

uses.

EFFECTIVE DATE: February 13, 1995.

FOR FURTHER INFORMATION CONTACT: Terrence J. Boyle, Attorney, (202)

326-3016, Division of Enforcement, Bureau of Consumer Protection,

Federal Trade Commission, Washington, D.C. 20580.

SUPPLEMENTARY INFORMATION:

I. Background

The Nursery Guides were issued by the Commission in 1979.\1\ These

Guides address numerous sales practices for outdoor plants, trees and

flowers, including deceptive claims as to quantity, size, grade, kind,

species, age, maturity, condition, vigor, hardiness, growth ability,

price and origin or place where grown. On March 25, 1993, the

Commission published a Notice in the Federal Register soliciting

comment on the Guides.\2\ Specifically, the Commission solicited

comments on the costs and benefits of the Guides and their regulatory

and economic effect (see Part B below) and on a proposed amendment to

the Guides submitted by the Natural Resources Defense Council and

others (see Part A below). The comment period closed on May 26, 1993.

In response to the Notice the Commission received 37 comments. They are

discussed in Part II below.

---------------------------------------------------------------------------

\1\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. 16 CFR

1.5.

\2\58 FR 16139.

---------------------------------------------------------------------------

A. The Amendment Petition

On October 15, 1991, the Natural Resources Defense Council (NRDC)

requested for itself and ten other organizations\3\ that the Commission

amend Guide 6 and the definitions section of the Nursery Guides. The

petitioners asked the Commission to narrow significantly the one

exception to the Guides' requirement that plants collected from the

wild be identified as such. Guide 6 presently exempts from this wild-

origin disclosure requirement wild-collected plants that have been

grown in a nursery for a full growing season.\4\ Such plants could be

called ``Nursery-grown'' under the Guides because the Guides defined

the term ``nursery-grown stock'' to include both plants propagated and

cultivated in nurseries and wild-collected plants grown in nurseries

for a full growing season.\5\

---------------------------------------------------------------------------

\3\NRDC was joined in its petition by the following: California

Native Plant Society (CNPS); Environmental Defense Fund (EDF);

Garden Club of America (GCA); Mt. Cuba Center for the Study of

Piedmont Flora (MCCSPF); National Audubon Society (NAS); Native

Plant Society of Oregon (NPSO); Native Gardens (of Greenback,

Tennessee) (NGGT); New England Wild Flower Society, Inc. (NEWFS);

Niche Gardens Nursery of Chapel Hill, North Carolina (NGN); Traffic

U.S.A. (T-USA).

\4\Guide 6, 16 CFR 18.6, entitled ``Plants collected from the

wild state,'' reads as follows: ``It is an unfair trade practice to

sell, offer for sale, or distribute industry products collected 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]''

\5\Section 18.0 of the Guides, 16 CFR 18.0, entitled

``Definitions,'' includes the following definition: ```Nursery-grown

stock.' Plants propagated and grown under cultivation, or plants

transplanted from the wild and grown under cultivation for at least

one full growing season.''

---------------------------------------------------------------------------

The petitioners contended that Guide 6's exception to the wild-

origin disclosure requirement for wild-collected plants grown in

nurseries for a growing season and the Guides' definition of the term

``Nursery-grown stock'' can cause consumer confusion about the origins

of plants being offered for sale and contribute to the endangering of

several species of wild plants. The petitioners argued that many

consumers, for environmental reasons, do not want to purchase any

plants collected from the wild at any stage of their existence. Such

consumers are only willing to buy plants that have been propagated in

nurseries. Because the present Guides allow both nursery-propagated and

some wild-collected plants to be called ``Nursery Grown,'' consumers

are unable to tell whether a plant described as ``Nursery-Grown'' was

actually collected from the wild.

The petition requested that the:

Commission amend its Guides for The Nursery Industry to prohibit

use of the misleading term ``nursery grown'' and require that plants

labeled as ``propagated'' be grown from seeds, cuttings, callus tissue,

spores or other propagules (bulblets, bulbils, single cells, leaves)

under controlled conditions.

The original petition did not propose specific amendment language.

The petitioners expected discussions among interested parties would

first be necessary before specific amendment language could be

suggested. The essence of the petitioners' request, however, was to

have the Rule henceforth require plants collected from the wild but

then grown in a nursery for a full growing season to be identified as

wild collected. The Rule would no longer allow them to be called

``nursery grown.'' Only those plants propagated and grown in nurseries

would be exempt from the wild-collected disclosure requirement. The

petitioners also asked that the Guides make clear under what conditions

plants may be designated ``nursery propagated'' by proposing:

The term ``controlled conditions'' would include open beds on one's

property (including rented property) as long as the propagator is

engaging in efforts to promote propagation and growth of the plants,

e.g., weeding; fencing out deer, rabbits, or other wild animals;

watering; or providing fertilizer.

On May 21, 1992, the American Association of Nurserymen (AAN), the

nursery industry trade association, wrote to the Commission stating its

support for the petitioners' request and offered for consideration

specific amendment language.\6\ AAN urged that the Commission amend

Guide 6 to delete the exception to the wild origin disclosure

requirement for ``Nursery Grown'' stock. Further, AAN urged restricting

use of the term ``Nursery Propagated'' to just those plants actually

grown in nurseries from seeds or other propagules and specifying that

any plant propagated in a nursery from a plant lawfully collected from

the wild is to be considered ``nursery propagated.''

---------------------------------------------------------------------------

\6\This letter, along with the original petition, was placed on

the public record and described in the Federal Register Notice.

---------------------------------------------------------------------------

AAN explained that at the time the Guides were adopted the critical

issue with respect to plants' origins was to protect consumers from

inferior plant specimens. Plants freshly gathered from the wild often

die shortly afterwards due to their weakened condition following the

collection process. Guide 6 was written to prevent the omission of the

material fact of recent wild-collecting and thereby protect consumers

from inadvertently purchasing freshly collected wild plants. In recent

years, however, plant consumers have developed environmental concerns

that fifteen years ago were not known by the Commission. As a result,

AAN stated that over time the disclosure allowed by Guide 6 to permit

consumers to distinguish newly collected wild plants from nursery-

propagated plants or wild-collected plants that have been grown in a

nursery for a full growing season has become misleading. Some consumers

now object to buying any wild-collected plants, not because of the harm

that the collection processes may have caused the particular plants

being sold, but because of the harm the collection processes may be

causing the plant species in general and the environment.

AAN therefore proposed the following specific language to amend

Guide 6:

It is an unfair trade practice to sell, offer for sale, or

distribute industry products collected from the wild state without

disclosing that they were collected from the wild state; provided,

however, that plants propagated from plants lawfully collected from the

wild state are recognized and may be designated as nursery-propagated.

AAN argued that the above language would resolve the ambiguity in

the term ``nursery-grown'' that troubles petitioners (i.e., was the

plant collected from the wild state and grown in a nursery for a full

growing season or was the plant propagated in a nursery from a wild-

collected plant?). At the same time it avoids an ambiguity from arising

over the meaning of the term ``plants propagated'' by recognizing that

for all plants under consideration there had to have been an initial

propagative stock obtained from the wild. AAN argued that succeeding

generations of such plants should be distinguished from the initial

stocks and that the Guides should exempt from the wild-origin

disclosure requirement only the succeeding generations that have been

propagated and grown in nurseries. Only such plants should be allowed

to be sold as ``Nursery Propagated.''

The Federal Register Notice described the amendment proposals and

sought comment on sixteen questions asking about the extent of wild-

collecting, the degree consumers are concerned about knowing the

origins of the plants they purchase, the interpretation consumers give

to the term ``nursery-grown,'' the identities of plant species that are

now commonly wild-collected, the likelihood that continued wild-

collecting of these plants might endanger the chances of the species

surviving, and the costs and benefits associated with amending this

Guide.

B. Regulatory Review

As part of the Commission's ongoing project to review all its

guides and rules, the Federal Register Notice that sought comment on

the amendment proposal for the Guides also included questions about the

costs and benefits of the guides and their regulatory and economic

impact. The Notice also asked three general questions about the

environmental impact of the Nursery Guides, the relationship of those

Guides to statutes and treaties that cover the same subject matter, and

any changes since 1979 in consumer perceptions or preferences about

products covered by those Guides.

II. Comments Received

The Commission received comments from 36 individuals and

organizations. Of these, 23 were from individuals interested in

gardening. The others were from state or federal government officials,

gardening publications, members of the nursery industry, and a garden

club officer.7

---------------------------------------------------------------------------

\7\One person, Aimlee D. Laderman, submitted two comments. The

list of commentators below includes the document number for the

public record assigned each comment, the name of (and an

abbreviation for) the commentator, and (when included in the comment

or otherwise made known to the Commission) a general description of

the person or organization making the comment.

#001............................. William A. Niering, Professor of

Botony, Department of Botony,

Connecticut College,[WAN].

#002............................. Richard W. Lighty, Director, Mt Cuba

Center For The Study Of Piedmont

Flora [MCCSPF] One of the

petitioners.

#003............................. Richard L. Krueger, Environmental

Education Coordinator, Connecticut

Department of Environmental

Protection [RLK].

#004............................. Susan M. Smith [SMS].

#005............................. Joan L. Faust [JLF].

#006............................. Marilyn Magid, Chairman, Conservation

Committee, The Garden Club of

America [GCA]. One of the

petitioners.

#007............................. Ellen McMahon [EMcM].

#008............................. Clarisse S. Willemsen [CSW].

#009............................. Kelly Kearns, Native Plant Management

Specialist, Wisconsin Department of

Natural Resources [KK].

#010............................. Aimlee D. Laderman, Lecturer in

Wetland Ecology, School of Forestry

and Environmental Studies, Yale

University [ADL].

#011............................. Faith Thompson Campbell, Natural

Resources Defense Council [NRDC] One

of the petitioners.

#012............................. Mrs. Donald C. McClure [DCMcC].

#013............................. Zella E. Ellshoff [ZEE].

#014............................. Thomas Morley [TM].

#015............................. David Morgan, Editor, Nursery

Manager: The Nation's Magazine, for

Nurseries, Garden Centers &

Landscapers [DM].

#016............................. Sally D. Pettit [SP].

#017............................. Scott Weber, Co-Owner, Bluestem Farm:

Native Wildflowers & Grasses [SW].

#018............................. Teri Dunn, Associate Editor,

Horticulture: The Magazine of

American Gardening [TD].

#019............................. Craig J. Regelbrugge,, Director of

Regulatory Affairs and Grower

Services, American Association of

Nurserymen [AAN] Joined in the

petition.

#020............................. Patrick Smith [PS].

#021............................. Anne N. Clark [ANC].

#022............................. Marilyn Ortt [MO].

#023............................. Gloria C. Jones [GCJ].

#024............................. Rebecca Beattie [RB].

#025............................. Nina Peyton [NP].

#026............................. Calvert J. Armbrecht [CJA].

#027............................. Louise H. Hisdreth [LHH].

#028............................. Stuart Swift [SS].

#029............................. Sally L. White, Conservation

Committee, Colorado Native Plant

Society [SLW].

#030............................. Jennifer McAnlis [JMcA].

#031............................. Katharine P. Mackie [KPM].

#032............................. David S. Longland, Executive

Director, New England Wild Flower

Society [NEWFS]. One of the

petitioners.

#033............................. Charles Thomas, President, Mailorder

Association of Nurseries [CT].

#034............................. Gracie Harison [GH].

#035............................. Wayne L. Mitchell, Acting Chief,

Office of [CITES] Scientific

Authority, United States Department

of the Interior [WLM].

#036............................. Mary E. Morris [MEM].

#037............................. Aimlee D. Laderman, Lecturer in

Wetland Ecology, School of Forestry

and Environmental Studies, Yale

University [ADL].

The comments addressed only the proposal to amend Guide 6. No

comment responded to any of the regulatory review questions.8 Four

of the comments were letters from the petitioners supporting their

proposal.9 A fifth comment was a follow-up letter from the

American Association of Nurserymen.10

---------------------------------------------------------------------------

\8\For the text of the questions see the March 25, 1993, Federal

Register Notice.

\9\MCCSPF, #002, 1-2.; GCA, #006, 1; NRDC, #011, 1-9; NEWFS,

#032, 1-11.

\1\0AAN, #019, 1-4.

---------------------------------------------------------------------------

The comments from the petitioners and AAN stated that they had

reached agreement among themselves in requesting that the Commission

adopt the specifically worded amendment that AAN had proposed and that

the Commission amend the definitions section of the Guides by deleting

the present definition for ``Nursery-grown stock'' and adding instead

the following two new definitions:

`Nursery propagated stock' Plants propagated and grown under

cultivation, including plants propagated from plants, seeds, or

cuttings lawfully collected from the wild state.

`Propagation' Plants grown from seeds, cuttings, callous tissues or

other plant tissues, spores or other propagules under controlled

conditions. `Under controlled conditions' means in a non-natural

environment that is intensely manipulated by human intervention for the

purpose of producing selected species or hybrids.

Twenty-three comments simply urged the Commission to help protect

the environment and plant species now being wild-collected by amending

Guide 6 as petitioners have requested, but not answering any of the

specific questions of the Federal Register Notice.11 The 8

remaining commentators also urged the Commission to adopt the proposed

amendments, contending that many consumers are increasingly becoming

concerned with the effect that wild-collecting of plants is having on

the chances of survival of several popular species. In response to a

question in the Notice, four of these comments identified wild-

collected plants that are presently being sold in nurseries.12 For

example, Marilyn Ortt wrote that Cypripedium calceolus var. pubescens

is currently listed as ``Potentially Threatened'' by the State of Ohio,

but sells at retail for $7-9 in southern Ohio.13

---------------------------------------------------------------------------

\1\1WAN, #001, 1; RLK, #003, 1; SMS, #004, 1; JLF, #005, 1;

EMcM, #007, 1; CSW, #008, 1-2; ADL, #010, 1; WLM, #035, 1-36; DCMcC,

#012, 1-2; TM, #014, 1; SP, #016, 1; ANC, #021, 1; GCJ, #023, 1; RB,

#024, 1; NP, #025. 1; CJA, #026, 1; LHH, #027, 1; SS, #028, 1; SLW,

#029, 1; KPM, #031, 1; CT, #033, 1; GH, #034, 1-2; MEM, #036, 1;

ADL, #037, 1.

\1\2SW, #017, 1; PS, #020, 1-2; MO, #022, 1-2; JMcA, #030, 1.

\1\3MO, #022, 1.

---------------------------------------------------------------------------

The other four comments provided examples of the price differences

existing between wild-collected and nursery-propagated specimens of the

same plant species and offered explanations for such

differences.14 For example, when collected from the wild, orchids

typically cost less than $1, while orchids propagated from tissue

culture or seed and then grown to maturity in nurseries can cost $15 or

more.15 Such price differences exist primarily because of the

great difficulty so far experienced in getting certain popular wild

plants to propagate and grow in nurseries or because of the amount of

time and labor necessary to raise such plants to a point when they are

suitable for sale. One commentator cited the popular plant, Trillium,

which is rarely, if ever, nursery-propagated because it takes seven

years to grow before blossoming.16 None of the comments, however,

provided any data regarding what increased costs there might be for

retailers if the Guides no longer exempted from the wild-origin

disclosure requirement those wild-collected plants that had grown in

nurseries for a full growing season.

---------------------------------------------------------------------------

\1\4KK, #009, 1-3; ZEE, #013, 1-3; TD, #018, 1-5; WLM, #035, 1-

36.

\1\5KK, #009, 2. See also TD, #018, 2-3.

\1\6PS, #020, 1.

---------------------------------------------------------------------------

The United States Department of the Interior also submitted a

comment favoring the petitioners' proposal to amend the Guides to

narrow the exception to the wild-origin disclosure requirement. It

attached copies of pertinent sections of the Convention on

International Trade in Endangered Species of Wild Fauna and Flora

(CITES), the Endangered Species Act of 1973 (ESA), as amended, and the

Lacey Act, all of which are concerned with protecting endangered

species of animals and plants. These show that revising the Guides to

use the word ``propagated'' rather than ``grown'' would be consistent

with the terminology of that treaty and those statutes.17 The

comment stated that the Commission's Guides ``are useful for plant

conservation.'' The kinds of plants covered by the Guides, and of

concern to the petitioners, are not (yet) endangered and therefore not

among those that specifically come under that treaty or those statutes.

The comment nonetheless stated that amending the Guides as requested

would be ``an important force to help keep the trade away from overuse

of wild specimens.''

---------------------------------------------------------------------------

\1\7WLM, #035, 1-2.

---------------------------------------------------------------------------

III. Conclusion

Although none of the comments specifically addressed the regulatory

review questions, no comment suggested that sellers have experienced

any difficulties in complying with the Guides.18 The Commission

infers that, because all the commentators urged the Commission to amend

the Guides as petitioners have requested, they all favor retaining the

Guides. The Commission therefore has concluded its regulatory review of

the Guides by deciding to retain them.

---------------------------------------------------------------------------

\1\8Although it did not respond to particular questions, the

United States Department of the Interior stated in its comment its

desire to ``encourage the Federal Trade Commission to continue 16

CFR part 18--Guides for the Nursery Industry.'' Ibid., 2.

---------------------------------------------------------------------------

All the comments urged that the Guides be amended as the

petitioners have requested.19 The Commission has determined to

revise the Guides because, as presently written, Guide 6 and the

definition of the term ``Nursery-grown stock'' do not allow consumers

to distinguish between plants that were propagated in nurseries and

those that were collected from the wild state and then grown in a

nursery for a full growing season. Under the present Guides, both kinds

of plants may be designated as ``nursery-grown,'' which may

inadvertently mislead consumers about the origin of the plants. When

the Guides were issued there may have been no deception involved in so

combining nursery-propagated and wild-gathered-but-nursery-cultivated

plants in a single category called ``nursery-grown stock.'' The

Commission now, however, knows there are substantial numbers of

consumers opposed to buying any wild-collected plants because they

believe that such collection processes are endangering the survival of

various plant species and damaging the environment. To them, a failure

to disclose that plants were originally collected from the wild would

be an omission of material fact. The industry itself (AAN) appears to

concur in this view. Accordingly, the Commission's original

interpretation of Section 5(a) of the FTC Act as it pertains to this

issue is being revised to reflect changes in what is material to

consumers when purchasing plants.

---------------------------------------------------------------------------

\1\9The Notice soliciting comments on the Guides (58 FR 16139,

March 25, 1993) quoted both the petitioners' general request that

Guide 6 be amended and the specific amendment proposals that AAN

requested and that the petitioners later supported.

---------------------------------------------------------------------------

The amendments proposed by AAN and the petitioners would permit

only those plants actually propagated in nurseries to be exempt from

the Guides' wild-origin disclosure requirement. Those sellers who have

lawfully collected plants from the wild will have to disclose this

fact, even if the plants have later been grown in a nursery for a full

growing season. Sellers will, however, be free to add to the wild-

origin disclosure a statement that the plant has been grown in a

nursery for a full growing season, if they wish. By defining what is

meant by ``propagated'' and ``propagation,'' the proposed amendments

also will clarify that it is only the plants being offered for sale,

not those from which they are descended, that are subject to the

Guides' disclosure requirement.

The Commission, however, has concluded that the words ``are

recognized and'' that the petitioners included in their proposed

amendment to Guide 6 are neither necessary nor helpful and therefore

has omitted them. The Commission also is using slightly revised wording

for the two proposed new definitions for the Guides so that: (1) Each

definition consists of just one sentence; (2) the two terms being

defined are for words actually used in the Guides rather than variants

of them (i.e., define ``nursery-propagated'' rather than ``nursery-

propagated stock'' and ``propagated'' rather than ``propagation''); and

(3) the definitions do not use a word that is itself part of the term

being defined (i.e., do not use the word ``propagated'' in the

definition of the term ``nursery-propagated'').

Lastly, the Commission is revising Sec. Sec. 18.1(a), 18.2(a)-(b),

18.3(a), 18.4(a)-(b), 18.5, 18.6, 18.7(a)-(b), and 18.8(a)-(b) of the

Guides. Specifically, the Commission is deleting from the Guides the

expressions ``it is an unfair trade practice'' and ``has the capacity

and tendency or effect of deceiving purchasers'' that the Commission no

longer uses in its orders, rules or guides. The Commission is bringing

these Guides up to date by substituting the language ``it is an unfair

or deceptive act or practice'' and ``misrepresents directly or by

implication.'' See the Commission's 1983 Statement on Deception found

in the appendix to Cliffdale Associates, 103 F.T.C. 110, 174 (1984).

List of Subjects in 16 CFR Part 18

Advertising, Nursery, Unfair or deceptive acts or practices.

Text of Amendments

For the reasons set forth in the preamble, 16 CFR Part 18 is

amended as follows:

PART 18--GUIDES FOR THE NURSERY INDUSTRY

1. The authority citation for part 18 is revised to read as

follows:

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

46.

2. Section 18.0 is amended by removing the paragraph Nursery-grown

stock. and by adding the following definitions:

Sec. 18.0 Definitions.

* * * * *

Nursery-propagated. Reproduced and grown under cultivation,

including reproduced 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 controlled environment that

is intensely manipulated by human intervention for the purpose of

producing selected species or hybrids.

3. Section 18.1 is amended by revising paragraph (a) to read as

follows:

Sec. 18.1 Deception (general).

(a) It is an unfair or deceptive act or practice to sell, offer for

sale, or distribute industry products by any method or under any

circumstance or condition that misrepresents directly or by implication

to purchasers or prospective purchasers the products with respect 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 any other material

aspect of the industry product.

* * * * *

4. Section 18.2 is amended by revising paragraphs (a) and (b)(1)

and (2) to read as follows:

Sec. 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 directly or by

implication to purchasers or prospective purchasers 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 generally recognized and well-

established common name, it is an unfair or deceptive act or practice

for an industry member to adopt and use a new name for the product

unless such new name is immediately accompanied by the generally

recognized and well-established common name, or by the correct

botanical name, or by a description of the nature and properties 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.

* * * * *

5. Section 18.3 is amended by revising the introductory text and

paragraph (a) to read as follows:

Sec. 18.3 Substitution of products.

With respect to industry products offered for sale by an industry

member, it is an unfair or deceptive act or practice for any member of

the industry:

(a) To ship or deliver industry products which do not conform to

representations made prior to securing the order or to specifications

upon which the sale is consummated, without advising the purchaser of

the substitution and obtaining the purchaser's consent thereto prior to

making shipment or delivery, where failure to advise would be

misleading to purchasers; or

* * * * *

6. Section 18.4 is amended by revising paragraphs (a) and (b) to

read as follows:

Sec. 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 designation for any industry product in a manner or

under any circumstance that misrepresents directly or by implication to

purchasers or prospective purchasers the actual size or grade of such

products.

(b) Under this section industry members offering lining-out stock

for sale shall specify conspicuously and accurately the size and age of

such stock when failure to do so may misrepresent directly or by

implication such stock to purchasers or prospective purchasers.

* * * * *

7. Section 18.5 is amended by revising the introductory text to

read as follows:

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

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 misrepresent directly or by implication to purchasers or

prospective purchasers the ability of such products:

* * * * *

8. Section 18.6 is revised to read as follows:

Sec. 18.6 Plants collected from the wild state.

It is an unfair or deceptive act or practice to sell, offer for

sale, or distribute 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-

propagated.'' [Guide 6]

9. Section 18.7 is revised to read as follows:

Sec. 18.7 Misrepresentation as to character 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 industry member 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 directly

or by implication the character, nature, or extent of the industry

member's business.

Note: Among practices subject to the inhibitions of this section

is a representation by an industry member to the effect that he is a

landscape architect when his training, experience, and knowledge do

not qualify him for such representation.

(b) It is also an unfair or deceptive act or 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 its

business is other than a commercial enterprise 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]

10. Section 18.8 is revised to read as follows:

Sec. 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 advertise an industry product by misrepresenting directly or

by implication the origin or source of such product to purchasers or

prospective purchasers (e.g., by use of the term ``Holland'' to

describe bulbs grown in the U.S.A.); provided, however, that when a

plant has an accepted common name that incorporates a geographical 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,'' ``Arizona

Cypress,'' ``Black Hills Spruce,'' ``California Privet,'' ``Japanese

Barberry,'' 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 purchasers or prospective purchasers. [Guide 8]

By direction of the Commission, Commissioner Varney not

participating.

Donald S. Clark,

Secretary.

[FR Doc. 94-30706 Filed 12-13-94; 8:45 am]

BILLING CODE 6750-01-P