Request for Public Comment on Proposed Guides for the use of U.S. Origin Claims

Federal RegisterMay 7, 1997

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FEDERAL TRADE COMMISSION

Request for Public Comment on Proposed Guides for the use of U.S.

Origin Claims

AGENCY: Federal Trade Commission.

ACTION: Request for public comment on proposed Guides for the Use of

U.S. Origin Claims.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') has

been conducting a comprehensive review of ``Made in USA'' and other

U.S. origin claims in product advertising and labeling. Historically,

the Commission has held that a product must be wholly domestic to

substantiate an unqualified ``Made in USA'' claim. As part of its

review, the Commission, by Federal Register notice dated October 18,

1995, requested public comment on various issues related to the

evaluation of such claims and, on March 26 and 27, 1996, held a public

workshop and invited representatives of industry, consumer groups,

unions, government agencies and others to attend and exchange views. On

April 26, 1996, the Commission published a Federal Register notice

extending the deadline for post-workshop public comments until June 30,

1996.

The Commission now announces proposed Guides for the Use of U.S.

Origin Claims and seeks public comment on these guides. Under these

proposed guides, a marketer making an unqualified claim of U.S. origin

must, at the time it makes the claim, possess and rely upon a

reasonable basis that the product is substantially all made in the

United States. To assist manufacturers in complying with this standard,

the proposed guides also set out two alternative ``safe harbors'' under

which an unqualified U.S. origin claim would not be considered

deceptive. The first safe harbor encompasses products whose U.S.

manufacturing costs constitute 75% of total manufacturing costs and

were last substantially transformed in the United States. The second

safe harbor applies to products that have undergone two levels of

substantial transformation in the United States: i.e., the product's

last substantial transformation took place in the United States, and

the last substantial transformation of each of its significant inputs

took place in the United States.

The proposed guides also address various qualified claims, claims

regarding specific processes and parts, multiple-item sets, and changes

in costs and sourcing. They also authorize specific origin claims for

certain products that are both sold domestically and exported.

Throughout, the proposed guides address the interaction of FTC

deception law with U.S. Customs Service requirements.

DATES: Written comment will be accepted until August 11, 1997.

ADDRESSES: Six paper copies of each written comment should be submitted

to the Office of the Secretary, Federal Trade Commission, Room 159,

Sixth and Pennsylvania Avenue, N.W., Washington, D.C. 20580. To

encourage prompt and efficient review and dissemination of the comments

to the public, all comments also should be submitted, if possible, in

electronic form, on either a 5\1/4\ or a 3\1/2\ inch computer diskette,

with a label on the diskette stating the name of the commenter and the

name and version of the word processing program used to create the

document. (If possible, documents in WordPerfect 6.1 or Word 6.0, or

earlier generations of these word processing programs, are preferred.

Files from operating systems other than DOS or Windows should be

submitted in ASCII text format to be accepted.) Individuals filing

comments need not submit multiple copies or comments in electronic

form. Submissions should be captioned: ``Made in USA Policy Comment,''

FTC File No. P894219.

FOR FURTHER INFORMATION CONTACT: Beth M. Grossman, Attorney, Division

of Advertising Practices, Bureau of Consumer Protection, FTC,

Washington, DC 20580, telephone 202-326-3019, or Kent C. Howerton,

Attorney, Division of Enforcement, Bureau of Consumer Protection, FTC,

Washington, DC 20580, telephone 202-326-3013.

SUPPLEMENTARY INFORMATION:

I. Introduction

The Commission has been conducting a comprehensive review of its

standards for evaluating ``Made in USA'' claims in advertising and

labeling. The Commission now proposes to issue Guides for the Use of

U.S. Origin Claims, set out at the end of this notice, and seeks

comment on these proposed guides. The comment period will remain open

until August 11, 1997.

The Commission regulates claims of U.S. origin, such as ``Made in

USA,'' pursuant to its statutory authority under Section 5 of the

Federal Trade Commission Act, which prohibits ``unfair or deceptive

acts or practices.'' Cases brought by the Commission beginning over 50

years ago established the principle that it was deceptive for a

marketer to promote a product with an unqualified ``Made in USA'' claim

unless that product was wholly of domestic origin.1

Recently, this standard had been rearticulated to require that a

product advertised as ``Made in USA'' be ``all or virtually all'' made

in the United States, i.e., that all or virtually all of the parts are

made in the U.S. and all or virtually all of the labor is performed in

the U.S.2 In both cases, however, the import has been the

same: unqualified claims of domestic origin were deemed to imply to

consumers that the product for which the claims were made was in all

but de minimis amounts made in the United States.

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\1\ See, e.g., Windsor Pen Corp., 64 F.T.C. 454 (1964); Vulcan

Lamp Works, Inc., 32 F.T.C. 7 (1940).

\2\ This language was first used in the cases of Hyde Athletic

Industries, File No. 922-3236 (consent agreement accepted subject to

public comment Sept. 20, 1994) and New Balance Athletic Shoes, Inc.,

Docket No. 9268 (complaint issued Sept. 20, 1994). In light of the

decision to review the standard for U.S. origin claims, the

Commission later modified the complaints in these cases to eliminate

the allegations based on the ``all or virtually all'' standard.

Consent agreements based on these revised complaints were issued on

December 2, 1996 (New Balance) and December 4, 1996 (Hyde).

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In a July 11, 1995 press release, the Commission announced that it

would undertake a comprehensive review of U.S. origin claims and

examine whether the Commission's traditional standard for evaluating

such claims remained consistent with consumer perceptions and continued

to be appropriate in today's global economy. On October 18, 1995, the

Commission published a notice in the Federal Register formally

soliciting public comment for 90 days on various issues related to this

review, including the costs and benefits of continuing to use the ``all

or virtually all'' standard, and announcing that Commission staff would

conduct a public workshop on this topic. 60 FR 53922. A follow-up

notice published on December 19, 1995, announced that the public

workshop would be held on March 26 and 27, 1996, and indicated that the

record would be held open for post-workshop public comment until April

30, 1996. 60 FR 65327. In response to these notices, the Commission

received approximately 294 written comments. Contemporaneous with the

solicitation of public comment, Commission staff also commissioned a

two-part study to examine consumer understandings of U.S. origin

claims. The results of this study are discussed below.

As noted, Commission staff conducted a two-day public workshop on

issues related to U.S. origin claims. Thirty-three individuals,

representing corporations and trade associations from a variety of

industries; labor unions; federal and state government agencies;

[[Page 25021]]

and consumer groups, participated in the workshop, and a number of

other interested individuals attended the workshop as observers. At the

workshop, which was moderated by a neutral, third-party facilitator,

results of the Commission's consumer perception study as well as

consumer studies conducted by several other participants were

presented, and there was an extended round table discussion of the

costs and benefits of the various alternative standards under

consideration for the evaluation of U.S. origin claims. Following the

workshop, the Commission, in a notice published on April 26, 1996,

extended the period for clarifying or rebuttal comments until June 30,

1996, and set forth additional questions for comment. 61 FR 18600.

Approximately 49 additional comments were received in response to the

April 26 notice, including a proposed set of guidelines submitted by

the ``Ad Hoc Group,'' a coalition of industry groups that had

participated in the public workshop.

After reviewing the public comments, the consumer perception

evidence, and the workshop proceedings, the Commission now proposes to

adopt Guides for the Use of U.S. Origin Claims, which appear at the end

of this notice in Section IX, and seeks comment on the proposed guides.

Section II of this notice discusses the relevant country-of-origin

marking rules applied by the U.S. Customs Service and how these rules

relate to the FTC's regulation of U.S. origin claims. Section III

summarizes the comments received by the Commission. Section IV contains

a discussion of the factors considered by the Commission in its

formulation of a policy on U.S. origin claims, including evidence of

consumer perception; consistency with other statutory and regulatory

requirements; and practical issues of implementation. Section V

provides an overview of the proposed guides, and Section VI provides a

section-by-section analysis of the proposed guides. Section VII

addresses the Commission's policy with respect to goods without any

country-of-origin marking. Section VIII requests public comment on the

proposed guides. The proposed guides themselves are set out in Section

IX.

Information related to the Commission's review of U.S. origin

claims, including the public comments received, a transcript of the

workshop proceedings, and consumer perception studies conducted by the

Commission and other interested parties, are available in the Public

Reference Room, Room 130, Federal Trade Commission, 6th and

Pennsylvania Ave., N.W., Washington, DC 20580. In addition, the public

comments, the workshop transcript, and previous Federal Register

notices related to this review are available on the Commission's Home

Page on the World Wide Web, which can be reached through the internet

at http://www.ftc.gov.

II. Background: Country-of-Origin Marking Requirements for Imported

Goods

A. Relationship Between the Requirements of the U.S. Customs Service

and the Policies of the FTC

In the course of the Commission's review, there has been much

discussion of the relationship between the policies of the U.S. Customs

Service (``Customs'' or ``the Customs Service'') and those of the FTC

with respect to country-of-origin marking. As a general matter, the

Customs Service regulates mandatory country-of-origin markings on

imported products, while the FTC's policies govern voluntary U.S.

origin claims, whether in advertising or labeling, about domestic

products.3

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\3\ The Commission also has had policies relating to unmarked

goods and disclosures to supplement those required by Customs. These

policies are addressed in Section VII.

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Specifically, Section 304 of the Tariff Act of 1930, administered

by the Secretary of the Treasury and the Customs Service, requires that

all products of foreign origin imported into the United States be

marked with the name of a foreign country of origin. Where an imported

product incorporates materials and/or processing from more than one

country, Customs considers the country of origin to be the last country

in which a ``substantial transformation'' took place. A substantial

transformation is a manufacturing process that results in a new and

different article of commerce, having a new name, character and use

that is different from that which existed prior to the processing.

Country-of-origin determinations using the substantial transformation

test are made on a case-by-case basis through administrative

determinations by the Customs Service. 4

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\4\ For goods from NAFTA countries, determinations are codified

in ``tariff shift'' regulations, as noted below.

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Where Customs determines that a good is not of foreign origin

(i.e., the good undergoes its last substantial transformation in the

United States), there is generally no requirement that it be marked

with any country of origin. For most goods, neither the Customs Service

nor the FTC requires that domestic goods be labeled with ``Made in

USA'' or any other indication of U.S. origin.5 Where a

marketer chooses voluntarily, however, to make a U.S. origin claim in

an advertisement or on a label, the marketer must conform with the FTC

Act's general prohibition on ``unfair or deceptive acts and

practices.'' Thus, a ``Made in USA'' claim, like any other advertising

claim, must be truthful and substantiated.

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\5\ For a limited number of goods, such as textile, wool, and

fur products, there are, however, statutory requirements that they

disclose the U.S. processing or manufacturing that occurred. See,

e.g., Textile Fiber Products Identification Act, 15 U.S.C. 70(b).

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B. Other Relevant Information on Country-of-Origin Determinations

In addition to the Tariff Act, two international agreements provide

a further backdrop to the discussion of country-of-origin labeling.

North American Free Trade Agreement (NAFTA)

Goods imported from NAFTA countries are not subject to the Customs

Service's case-by-case determinations of substantial transformation.

Instead, marking requirements for such goods are governed by a change

in tariff classification or ``tariff shift'' approach. This approach

relies on an enumerated list of changes in tariff classification. In

determining the country of origin for NAFTA marking purposes, one looks

to whether a foreign article has changed sufficiently as the result of

processing in another country that it would fit within a different

tariff classification than it would have prior to that processing.

Where the ultimate article undergoes one of the enumerated shifts in

tariff classification as a result of processing in a particular

country, the country of origin is the country where that processing

took place.6

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\6\ For example, assume that a product is partially manufactured

in a non-NAFTA country, then sent to Canada for its remaining

processing, and the finished product is exported to the United

States. Upon import into the United States, the product would be

appropriately marked ``Made in Canada'' if the tariff classification

assigned to the finished product when it is exported from Canada to

the United States is different from the tariff classification that

would be assigned to the product in the state in which it was

brought into Canada, and that difference in tariff classification is

on a specified list of tariff shifts enumerated in the NAFTA marking

rules.

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Although the NAFTA tariff classification scheme was intended by the

Customs Service to be merely a codification of its traditional

substantial transformation test, there continues to be controversy over

perceived differences between the tariff shift standard and case-by-

case rulings under the traditional standard. A decision on a proposal

by the Customs Service to

[[Page 25022]]

extend the NAFTA marking rules to all imported goods was recently

deferred to an indefinite later date.7

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\7\ In addition to its marking rules, NAFTA also specifies

separate rules of origin that are used to determine whether a

product qualifies for preferential tariff treatment under NAFTA.

These rules of origin are based on a different set of tariff shifts

than are the marking rules and, in many cases, also incorporate a

value-added requirement. For purposes of this notice, these rules of

origin will be referred to as ``NAFTA Preference Rules'' to

distinguish them from the ``NAFTA Marking Rules'' described above.

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World Trade Organization (WTO)

Pursuant to the Uruguay Round Agreements, the WTO is currently

engaged in an effort to harmonize international rules of origin. The

goal of this effort is for all participating countries to use the same

rules for determining country of origin for all non-preferential

purposes, including country-of-origin marking. The WTO Agreement on

Rules of Origin (ARO) adopts substantial transformation as the basic

standard for determining country of origin, and expresses a preference

for a tariff shift approach as the method of determining whether a

substantial transformation has taken place. The WTO's initiative does

not generally extend to determinations of domestic origin.8

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\8\ The ARO does provide, however, that standards for

determining the origin of domestic goods may be no longer than for

determining the origin of imported goods. In doing so, it implicitly

recognizes that standards for determining domestic origin may be

higher than those for determining foreign origin. ARO, Annex 1A,

Article 3(c).

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The WTO's harmonization program is scheduled to be completed three

years from its commencement in March 1995. The U.S. Government, through

the office of the United States Trade Representative and other

agencies, has participated actively in the WTO's effort. In order to

take effect in the United States, however, any rules published by the

WTO would have to be legislatively enacted by Congress and current

Customs rules harmonized with them. 9

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\9\ For further information on U.S. and international country-

of-origin marking, see U.S. International Trade Commission, Country-

of-Origin Marking: Review of Laws, Regulations and Practices,

(Publication 2975, July 1996) a report issued by the U.S.

International Trade Commission (ITC) in response to a request from

the House of Representatives Committee on Ways and Means (``ITC

Report'').

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III. Summary of Comments

A. General Information

The Commission received a total of 342 written public comments in

response to its announcement on July 11, 1995 that it would conduct a

comprehensive review of consumers' perceptions of ``Made in USA''

advertising claims and conduct a public workshop, and to its Federal

Register notices that specifically solicited public

comments.10 The commenters included approximately 182

individual consumers, 55 manufacturers and other corporations, 37 trade

associations, 7 labor unions and union-affiliated organizations, 26

members of Congress,11 26 state and Federal Government

agencies (including a coalition of 22 state attorneys general), 2

consumer groups, 2 nonprofit organizations, and 5 others.

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\10\ The comments have been filed on the Commission's public

record as Document Nos. B18354900001, B18354900002, etc. The

comments are cited in this notice by the name of the commenter, a

shortened version of the comment number, and the relevant page(s) of

the comment, e.g., Stanley, #59, at 5. A complete list of commenters

is appended to this notice. Comments #1 through #200 and #332

through #343 were submitted following publication of the

Commission's October 18, 1995, and April 26, 1996, Federal Register

notices soliciting public comment. Comments #201 through #281 and

#283 through #331 (there is no comment #282) were submitted in

response to media coverage prior to the October 18, 1995 notice, but

have been added to the public record of this matter because they are

relevant to the Commission's consideration). The transcript of the

public workshop on March 26 and 27, 1996 has been placed on the

Commission's public record as Document No. B199403. References to

comments made during the workshop are cited by the name of the

speaker, the speaker's affiliation, and the relevant page(s) of the

transcript, e.g., Sarah Vanderwicken for IBT, Tr. at 80-81.

Twenty-six commenters filed two comments each, in response to

the two notices soliciting public comment, and several comments were

signed by more than one commenter. Nonetheless, the total number of

commenters is, coincidentally, the same as the total number of

comments: 342.

\11\ In addition, five other members of Congress forwarded

comments from their constituents.

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The written comments, as well as the discussion at the public

workshop, focused primarily on three alternative standards for

evaluating U.S. origin claims. One group of commenters favored

retaining the Commission's current standard, under which a product

promoted as ``Made in USA'' would have to be ``all or virtually all''

made in the United States. A second set of commenters favored a

percentage content standard. Under this standard, a product could be

promoted as ``Made in USA'' if a set percentage (generally 50%) of the

cost of manufacturing that product was attributable to U.S. production,

and the product underwent final assembly in the U.S. A third group of

commenters favored some version of the substantial transformation test

applied by the U.S. Customs Service, such that any product

``substantially transformed'' in the United States could be labeled

``Made in USA.''

The discussion below summarizes the commenters positions on the

costs and benefits of each of the primary standards. It also briefly

summarizes comments proposing other standards, as well as comments

supporting and criticizing the guidelines proposed by the Ad Hoc

Group.12

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\12\ Because the Ad Hoc Group's proposed guidelines (comment

#183) were submitted to the Commission on the last day of the

comment period, they were not generally available for comment and

some interested parties may not have had the opportunity to review

them before submitting their own comments.

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B. ``All or Virtually All'' Standard

In its October 18, 1995 Federal Register notice, the Commission

sought comment on the costs and benefits of its current ``all or

virtually all'' standard. In response, most of the comments received by

the Commission discussed this standard, either to support it or to

criticize it.

1. Comments Supporting the ``All or Virtually All'' Standard

Approximately 147 individual consumers and 73 other commenters

supported the current ``all or virtually all'' standard.\13\ These

include a coalition of 22 state Attorneys General,\14\ 13 members of

Congress,\15\ 6

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trade associations,\16\ 7 labor unions or union-affiliated

organizations,\17\ 23 manufacturers and other corporations,\18\ a

consumer group,\19\ and a local political club.\20\

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\13\ Although not expressly identifying themselves as supporters

of the ``all or virtually all'' standard, at least two commenters

urged the Commission to adopt a percentage-based standard that would

require that products be made with at least 90% domestic parts and

labor in order to be called ``Made in USA.'' Bill Haley &

Associates, Inc (``Haley''), #128; G.G. Bean, Inc (``Bean''), #36

(submitted by the American Pet Products Manufacturers Association,

Inc., of which G.G. Bean is a member; the trade association itself

took no position on the appropriate standard for Made in USA

claims). For purposes of this summary, the Commission has treated

these comments as supporting an ``all or virtually all'' standard.

\14\ The comment originally submitted to the Commission on

behalf of the Attorneys General was signed by the Attorneys General

of the states of California, Connecticut, Florida, Hawaii, Iowa,

Kansas, Maryland, Michigan, Missouri, Nevada, New Hampshire, New

York, Ohio, Rhode Island, Washington, and West Virginia (``AGs''),

#43. Following the submission of comment #43, the Attorneys General

of the states of Illinois, #185, New Jersey, #138, North Carolina,

#114, Pennsylvania, #134, Tennessee, #122, and Wisconsin, #151,

joined in the coalition comment. A follow-up statement by the

Attorney General of Connecticut on behalf of the coalition was

submitted at the opening of the public workshop, and is included in

the public record as comment #343.

\15\ U.S. Rep. John D. Dingell (``Dingell''), #153; U.S. Rep.

Peter Deutsch (``Deutsch''), #340; U.S. Rep. Dale E. Kildee

(``Kildee''), #333; U.S. Rep. Jerry Kleczka (``Kleczka''), #337;

U.S. Sen. Carl Levin (``Levin''), #332; U.S. Rep. Donald A. Manzullo

(``Manzullo''), #334; U.S. Rep. Carlos J. Moorhead (``Moorhead''),

#339; U.S. Sens. Carol Moseley-Braun and Paul Simon (``Moseley-

Braun/Simon''), #341; U.S. Rep. Glenn Poshard (``Poshard''), #163;

U.S. Rep. James H. Quillen (``Quillen''), #168; U.S. Rep. Charles H.

Taylor (``Taylor''), #169; U.S. Rep. James A. Traficant, Jr.

(``Traficant''), #144.

\16\ Alabama Textile Manufacturers (``ATM''), #12; American Hand

Tool Coalition (``American Hand Tool''), #91, #186; American Textile

Manufacturing Institute (``ATMI''), #92, #171; Crafted With Pride in

USA Council, Inc. (``Crafted With Pride''), #35, #176; National

Knitwear & Sportswear Association (``NKSA''), #53; Tile Council of

America, Inc. (``TCA''), #161.

\17\ Jefferson, Lewis & St. Lawrence Counties Central Trade &

Labor Council, AFL-CIO (``AFL-CIO/Jefferson''), #146; Union Label &

Service Trades Dept., AFL-CIO (``AFL-CIO/ULSTD''), #48; Engineers

Political Action Committee (``EPAC''), #335; International

Brotherhood of Teamsters (``IBT''), #107; International Leather

Goods, Plastics, Novelty & Service Workers' Union, AFL-CIO/CLC

(``ILGPNSWU''), #80; United Auto Workers (``UAW''), #93, #174;

Retired Workers Council, Region 1-A, UAW (Buy American Union Label

Committee) (``UAW/RWC''), #33.

\18\ Bean, #36; Capital Mercury Shirt Corp. (``Capital''), #9;

Steel Technologies (``Steel Technologies''), #152; Centerville

Lumber Co. (attached to submission of U.S. Rep. Ed Bryant)

(``Centerville''), #145; Deere & Co. (``Deere''), #57; Diamond Chain

Co. (``Diamond Chain''), #55; Dynacraft Industries (``Dynacraft''),

#45, #173; Estwing Manufacturing. Co. (``Estwing''), #179; Hager

Hinge (``Hagar''), #160; Haley, #128; Impress Industries

(``Impress''), #308; Laclede Steel Co. (``Laclede''), #143;

Porterco, Inc. and Megasack Corp. (``Porterco/Megasack''), #132;

Precision--Kidd Steel Co.; (Precision-Kidd''), #142; Summitville

Tiles, Inc. (``Summitville''), #162; Tileworks (``Tileworks''),

#156; Tompkins Brothers Co., Inc (``Tompkins''), #157; Vaughan &

Bushnell Manufacturing (``Vaughan & Bushnell''), #97, #191; Weldbend

Corp. (``Weldbend''), #190; Werner Co. (``Werner''), #129; Western

Forge Corp. (Western Forge''), #49; Wright Tool (``Wright''), #40.

\19\ Citizen Action (``Citizen Action''), #181

\20\ Jefferson Democratic Club of Flushing, NY (``Jefferson

Democratic Club''), #61.

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The large majority of consumer comments supported the current

standard or some other, similarly high standard. Typically, individual

consumer commenters stated that ``Made in USA'' should mean ``Made in

USA.'' Many also stressed that they wish to buy American products, and

expressed concern that if the standard is lowered, they may be deceived

into buying a product that was not really made in the USA. The

following comments capture the flavor of many of the individual

consumer comments:

Please do not change the definition of ``Made in USA.'' ``Made

in USA'' means precisely that--manufactured on American soil, by

American workers, with American-made materials--100%21

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\21\ Virginia Hoover (``Hoover''), #5, at 1.

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How will we know what country made part or all of any item, or

what was completely made here, including raw materials? Can anything

be done to stop this action [changing the standard] on the part of

the FTC? 22

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\22\ Helen Menahen (attached to submission of U.S. Sen. Dianne

Feinstein) (``Menahen''), #200.

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American consumers who wish to purchase goods which are

domestically made will clearly be hampered from doing so if the

labels on those goods are ambiguous and may not mean what they say.

Please do not allow this to happen.23

\23\ Gloria Gonzalez (``Gonzalez''), #113.

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Other supporters of the ``all or virtually all'' standard warned

that altering the current standard will lead to consumer deception, or

at least consumer confusion, because the current standard is most

consistent with consumer perception. Citizen Action, for example,

stated:

Should the FTC [change the ``all or virtually all'' standard],

it is clear to us that a situation would exist in which the `Made in

USA' label means one thing in regulation and something very

different in the minds of consumers. The confusion that would be

created would directly contradict the primary purpose of utilizing

labels to provide an effective consumer information

tool.24

\24\ Citizen Action, #181, at 2.

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These commenters argued that the consumer perception evidence

before the Commission demonstrates that many American consumers

interpret a ``Made in USA'' label consistent with the ``all or

virtually all standard.'' Consumers, according to these commenters,

believe that a product that is labeled ``Made in USA'' is entirely made

in the USA, not merely assembled in the U.S. of foreign

parts.25

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\25\ See, e.g., Deere, #57, at 2 (citing FTC 1991 consumer

perception study showing that 77% of buying public believed that

``Made in USA'' claims mean ``all or nearly all'' of a finished

product was manufactured in U.S.); AGs, #43 at 2-4 (citing 1991 FTC

consumer perception study), #343 Dynacraft, #45, at 1-2 (citing 1991

FTC consumer perception study), #173, at 2-3, 5, 7; American Hand

Tool, #91, at 6; #186, at 2, 7; Diamond Chain, #55, at 1; NKSA, #53,

at 2; Western Forge, #49, at 1; Vaughan & Bushnell, #97, at 3;

Laclede, #143, at 11; Dingell, #153, at 2.

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Many commenters favoring the current standard further asserted that

consumer perception surveys demonstrate that ``Made in USA'' is a

material claim to the vast majority of American consumers. For example,

the American Hand Tool stated that all of the surveys presented at the

public workshop indicate that consumers consider a ``Made in USA''

label to be important when making purchasing decisions.26

Accordingly, these commenters concluded consumers want to know if a

product is made entirely, or only partially, in the United States and

choose to purchase products fully made in the United States for quality

reasons, to ensure that the product was not made by exploited workers,

and to support the U.S. economy and U.S. workers.27

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\26\ American Hand Tool, #186, at 6, n.2.

\27\ See, e.g., AGs, #43, at 4 (1991 FTC consumer perception

study showed respondents preferred U.S. products because buying USA

supports economy and keeps Americans working); Vaughan & Bushnell,

#97, at 2 (consumers look for make in USA label to assure themselves

of a high-quality tool and to express support for domestic

manufactering); Wright, #40, at 1 (enlarging Made in USA definition

would no longer strictly convey U.S. workmanship); Crafted With

Pride, #35, at 2 (consistent and corroborative research confirms

consumers' positive perception of the quality of Made in USA apparel

and home textiles; UAW/RWC, 33, at 1-2 (Would be sacrilege to allow

any part of any product to be sanctioned by Made in USA label if

made in foreign nations by exploited workers under deplorable

conditions).

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Several advocates of the ``all or virtually all'' standard

acknowledged that today's marketplace is a more global one, but argued

that this has not caused consumers to change their perception that

products advertised or labeled ``Made in USA'' contain all or virtually

all domestic materials and labor. Indeed, some of the supporters of the

current standard maintained that the fact that consumers may be aware

of increased globalization of production makes unqualified ``Made in

USA'' claims more, not less, significant. The coalition of Attorneys

General explained it thusly:

As the perception grows that America is losing jobs due to a

shrinking manufacturing base, and the availability of truly U.S.A.

products declines, the fact that a product is Made in the USA

becomes increasingly valuable to consumers who wish to buy American.

In such a climate, we believe it becomes more, not less, important

to ensure that manufacturers are not using deceptive claims * *

*.28

\28\ AGs, #43, at 2. See also International Brotherhood of

Teamsters (``[i]n the face of globalization, consumers can

appreciate even more the determination of a company to retain

American jobs and use American materials''); IBT, #107, at 4;

Poshard, #163, at 1.

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A number of supporters of the ``all or virtually all'' standard

disputed critics' assertions that it is nearly impossible to comply

with the standard. They emphasized that some companies can and do

produce products that are ``all or virtually'' made in the

USA.29 These commenters argued that lowering the standard

would penalize producers who are able to label their products as ``Made

in USA'' under the current standard, and would reward companies who

purchase foreign materials or use foreign labor. Diamond Chain Co., a

U.S. manufacturer of precision roller chains, for example, wrote:

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

\29\ See, e.g. Diamond Chain, #55; Vaughan & Bushnell, #97, at 2

(manufacturers hand tools that meet standard); Tileworks, $156, at 1

(only 5% of its raw materials are procured abroad); Welbend, #190

(makes fittings in U.S. without depending on foreign materials or

labor); American Hand Tool, #91, at 5 (Coalition members have made

and continue to make hand tools that meet current standard), #186,

at 2-3; Dingell, #153, at 2-3; Dingell, at 2; UAW, #174, at 1.

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

Being able to make an unqualified Made in USA claim for a

product with as little as 50%

[[Page 25024]]

domestic content benefits the manufacturer of that product by

allowing customers to believe that manufacturer contributes much

greater support to the domestic economy than is actually the case.

The manufacturer of a product with 95% domestic content is penalized

because he or she has incurred the cost of finding and developing

domestic sources of supply that the manufacturer of the lower

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

domestic-content product has not.30

\30\ Diamond Chain, #55, at 2. See also Michael S. Hinshaw and

Ernest R. Rollins (attached to submission of U.S. Sen. John D.

Rockefeller IV); (``Hinshaw), #66 (franchisees of U.S. company that

sells products truly made in U.S. will be at a great disadvantage

selling against competitiors who will be able to claim that imported

products they sell are made in the United States); Bean, #36 (use of

Made in USA label where product is not 100% manufactured in U.S.

increases profits of companies using inaccurate labeling); Dingell,

#153, at 2; Poshard, #163, at 1; Estwing, #179, at 1.

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Many supporters of the current standard asserted that the standard

furthers investment in U.S. manufacturing and creates secure jobs in

this country. Accordingly, lowering the standard would lessen the

incentive that companies have to use U.S. labor and U.S. product

components. American jobs, these commenters concluded, would be

jeopardized as companies rely more and more on less expensive foreign

sources. The United Auto Workers noted:

The increasing globalization of production has led to the

incorporation of foreign materials, parts and components into most

of the products made by UAW members. In too many cases, U.S. firms

use foreign inputs solely to increase their profits, which comes at

the expense of American jobs. When foreign procurement comes from

the subsidiaries of the U.S. firm, the adverse impact on American

jobs is a direct substitution of foreign labor for

domestic.31

\31\ UAW, #93, at 1. See also AFL-CIO/ULSTD, #48, at 4 (those

that want to dilute Made in USA claim are companies that have

destroyed jobs in U.S. moving all or part of their manufacturing

operations to the Third World for lower wages and higher profits);

Estwing, #179, at 1 (lowering standard would force domestic

manufacturers to import components to remain competitive,

effectively shipping U.S. jobs overseas; Traficant, #144, at 1

(diluting the standard would have a negative impact on U.S.

workers); IBT #107, at 3 (consumers will not use power to buy

products that are ``Made in USA'' if they do not know what that

means; would cost U.S. jobs); Quillen, #168, at 1; Taylor, #169, at

1; Vaughn & Bushnell, #97, at 4, #191. at 1; American Hand Tool,

#91, at 5, 10; Precision-Kidd, #142, at 1; Centerville, #145, at 1.

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

Other commenters contended that the ``all or virtually all''

standard should be maintained because it gives clear guidance to those

wishing to make a ``Made in USA'' claim. The coalition of Attorneys

General, for example, commented:

Due to the increasing relevance and popularity of Made in the

U.S.A. claims, consumers, manufacturers and law enforcement agencies

need clear and authoritative guidance regarding their meaning. . .

.Accordingly, we urge the FTC to promulgate a regulation, or an

enforcement guideline, incorporating the FTC's current standard that

requires products unqualifiedly represented to be Made in the U.S.A.

to be assembled all, or virtually all, within the U.S.A. using all,

or virtually all, U.S.A. component parts.32

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

\32\ AGs, #43, at 12-13. See also UAW/RWC, #33, at 1-2. (current

standard is ``simple and honest'' and cost to domestic commerce in

maintaining standard is minimal); Deere, #57, at 2; Vaughan &

Bushnell, #97.

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

Finally, several supporters of the ``all or virtually all''

standard contended that it is not necessary to change the standard in

order to permit sellers of products made with some foreign parts or

labor to inform consumers of their products' U.S. content. These

commenters argued that sellers are free to make qualified claims for

such products. As U.S. Representative Traficant stated, the ``FTC and

Congress have not precluded any manufacturer with such foreign content

or involvement from choosing to advertise or label their products as

Made in USA so long as they qualify that claim (e.g., `Made in USA of

foreign and domestic components').'' 33 Deere & Co. further

stated that if such alternatives are not acceptable to these companies,

``that is reflective of the importance of the claims based on consumer

expectations.'' 34

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\33\ Traficant, #144, at 1, See Also Dingell, #153, at 1;

Taylor, #169, at 1; Citizen Action, #181, at 2; Levin, #332, at 1;

Jeanne Archibald for American Hand Tool, Tr. at 231-232 (``people

seem to be ignoring . . . that there is a choice. You can make an

unqualified claim if you meet that standard, but you have full

discretion to make qualified claims and, in fact, to tell the

consumers whatever is the domestic content of your product. So it

isn't as if it's an either/or choice. There are many variations that

you can develop.'').

\34\ Deere, #57, at 2. See also, AGs, #43, at 6 (manufacturers

can still take advantage of fact that a significant portion of

product is made in U.S. under FTC standard; manufacturers'

insistence that consumers understand that products represented as

made in USA have substantial foreign content cannot be reconciled

with their separate claim that disclosure dilutes the attractiveness

of the made in USA claim); American Hand Tool, #186, at 5 (qualified

claims protect consumers' interests, while accommodating companies'

desire to advertise the U.S. content of their products); UAW, #174,

at 1; AFL-CIO/ULSTD, #48, at 4. But see Vaughn & Bushnell, #97, at 4

(supporting current standard, but stating that qualified claims

would generate confusion among hand tool consumers).

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

In a similar vein, Diamond Chain Co. maintained that, although it

is more difficult and expensive to make qualified claims for products

that are not wholly domestic, it is also ``a substantial sales benefit

to be able to make unqualified Made in USA claims,'' so that the issue

is reduced to a ``legitimate cost vs. benefit business decision.''

35 Thus, Diamond Chain Co. asserted that, if a producer

wants the advantage of the lower cost of foreign-produced materials and

components, the company should balance that benefit against the cost of

not being able to make an unqualified ``Made in USA'' claim.

Conversely, if a producer wants to take advantage of making an

unqualified ``Made in USA'' claim, the company should balance that

benefit against the cost of finding and developing the domestic

source.36

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\35\ Diamond Chain, #55, at 2.

\36\ Id. Some commenters did not explicitly support the ``all or

virtually all'' standard but nevertheless cited the benefits of

qualified claims. See, e.g., Brother International Corp. and Brother

Industries USA, Inc., (``Brother''), #109 at 2 (qualified claims

``provide an effective and nonburdensome alternative for advertisers

who do not wish to undertake whatever burdens may apply now or in

the future with respect to unqualified claims for products that are

not made entirely with U.S. labor and U.S. components.'') BGE, Ltd.

(``BGE''), #60, Exhibit A, at 3 (in most cases, ``there would be

little difficulty in making truthful comparative or qualified

claims'' that reveal a product is not entirely made in the U.S.,

provided that the claims are simple and that all relevant government

agencies have the same requirement); Cranston Print Works Co.

(``Crantson''), #38, at 3 (foreign custom officials would not

prohibit qualified ``Made in USA'' claims, and even if they did,

different label systems, one for domestic sales and one for export

sales would not be problematic); U.S. Customs Service (``Customs''),

#29, at 5-6, 7 (suggesting qualified claims may be appropriate for

goods substantially transformed in the United States from imported

components and noting that Canadian Customs accepts various forms of

marking for goods of NAFTA parties, including ``Made in USA with

foreign components''); American Advertising Federation (``AAF'')

#100, 5-6 (a flexible standard ``whereby a manufacturer has the

ability to make specific, qualified, and substantiated claims about

a product'' would ``further competition based on American content of

products, as well as increase consumer knowledge by allowing more

qualitative information into the marketplace.'') See also Office of

the District Attorney, County of Santa Cruz, CA (attached to

submission of National Association of Consumer Agency Administrators

(``Santa Cruz DA''), #137 (clear, short disclosures such as ``USA

80%'' on labels would be preferable; consumers most likely view

``Assembled in USA'' as suggesting a product with a majority of

foreign content; print ads logically would have more complete

disclosures of percentages and where a product is assembled).

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2. Comments Opposing the ``All or Virtually All'' Standard

Many of the comments received by the Commission criticized the

``all or virtually all'' standard as being too strict and urged the

Commission to lower it. In addition to those commenters who argued in

favor of the other standards discussed below, at least 15 commenters

who did not indicate a preference for a specific alternative standard

nonetheless expressed their dissatisfaction with the current

standard.37

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

\37\ American Electronics Association (``AEA''), #87; American

International Automobile Dealers Association (``AIADA''), #85; BGE,

#60; Johnson & Murphy (``Johnston''), #324; Korea Fair Trade

Commission (``KFTC''), #141; Processed Plastic Company (``Processed

Plastic''), #167; U.S. Sen. William S. Cohen (``Cohen''), #199; U.S.

Reps. Joseph P. Kennedy, Edward J. Markey, and Richard Neal

(``Kennedy''), #67; U.S. Reps. Neil Abercrombie, Peter Blute, Marty

Meehan, John Joseph Moakley, and John W. Olver (``Abercrombie''),

#25.

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

[[Page 25025]]

Several of the commenters opposing the ``all or virtually all''

standard asserted that the standard is no longer consistent with

consumer perception. According to these comments, consumers understand

that, in today's globalized marketplace, there are few purely domestic

products, and that therefore, consumers do not perceive products

advertised or labeled ``Made in USA'' as containing all or virtually

all domestic materials and labor.38 For example, the

Footwear Industries of America, Inc., stated:

\38\ See, e.g., Brown and Williamson Tobacco Co. (``B&W''), #96,

at 2 (current standard is inconsistent with consumer expectations);

Compaq Computer Corp. (``Compaq''), #62, at 2 (consumers of

electronic products tend to be both technologically savvy and

reasonably well-informed about the globalization of the electronics

industry); Caterpillar, Inc. (``Caterpillar''), #104, at 2;

Minnesota Mining and Manufacturing Co. (``3M''), #98, at 14.

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

We believe that the modern American consumer does not assume

that a ``Made in USA'' label means 100 percent domestic content.

There can be no doubt that such consumers realize that the United

States imports a large variety of raw materials and components for

use in the manufacture of finished goods. They obtain this knowledge

from information available in the media and from their own

experience working in industries more and more reliant on foreign

parts.39

\39\ Footwear Industries of America (``FIA''), #52, at 1, #177,

at 2-3. See also 3M, #98, at 10, 14; Automotive Parts Rebuilders

Association (``APRA''), #30, at 5; Footwear Distributors and

Retailers of America (``FDRA''), #27, at 2, #172, at 1-2; National

Council on International Trade Development (``NCITD''), #89, at 3;

New Balance Athletic Shoe, Inc. (``New Balance''), #44, at 3;

Sunbeam Corp. (``Sunbeam''), #39, at 2; Toyota Motor Sales USA, Inc.

(``Toyota''), #26, at 3.

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

Similar views were voiced by United Technologies Carrier:

Consumers recognize that the globalization of production and

assembly is so far advanced today, that it is difficult to recognize

any one particular country as parent to that product. Consequently,

consumers realize that it is rare, and virtually impossible, for a

product to be ``100% Made in U.S.A.'' 40

\40\ United Technologies Carrier (``UTC''), #94, at 2.

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

A number of commenters further cited consumer perception studies as

indicating that consumers do not believe that ``Made in USA'' refers

only to products made with all or virtually all domestic labor and

materials.41

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

\41\ See e.g., FIA, #52, at 1 (1991 FTC consumer perception

study found that approximately one half of respondents believed

``Made in USA'' claim meant less than 80% of parts and labor were

domestic), #177, at 2 (1995 FTC consumer perception study indicates

that only an insignificant minority of consumers understand ``Made

in USA'' claims to mean that all or virtually all of a product's

labor and materials are of domestic origin); Rubber and Plastic

Footwear Manufacturers Association (``RPFMA''), #178, at 1 (1995 FTC

consumer perception study found that a majority of participants were

willing to accept a ``Made in USA'' claim on products that contained

a significant amount of foreign parts, provided the product was

assembled in the U.S.); Bicycle Manufacturers Association of America

(``BMA''), #195, Appendix, at 1 (1995 FTC consumer perception study

indicates that only an insignificant minority of consumers

understand ``Made in USA'' to mean that 100 percent of a product's

parts and labor are of U.S. origin).

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

Several commenters argued that the current standard does not

reflect current manufacturing and global sourcing practices of U.S.

firms.42 These commenters maintained that, because the

standard requires such a high degree of domestic content and domestic

labor, few companies are able to meet it in today's world market.

Packard Bell Electronics, for example, highlighted the problems

associated with trying to obtain U.S.-made components for its products:

\42\ See, e.g., Compaq, #62, at 2; Kennedy, #67, at 2; U.S. Rep.

Glen Browder (``Browder''), #119, at 1; U.S. Sen. John Kerry

(``Kerry''), #68, at 1; Toshiba America Electronic Components, Inc.

(``Toshiba''), #34, at 2-3.

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

In many industries, and particularly in the consumer electronics

area, some types of components are not manufactured at all in the

U.S., or are domestically manufactured in such small quantities that

it is impossible to obtain the volume of U.S.-made components

necessary to support large manufacturing operations.43

\43\ Packard Bell Electronics (``Packard Bell''), #64, at 2.

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

These commenters contended that a standard that is unattainable for

so many industries no longer makes sense.44

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

\44\ See, e.g., Polaroid Co. (``Polaroid''), #90, at 4-5;

Toyota, #26, at 5 (no motor vehicle sold in the U.S. would meet the

``all or virtually all'' standard); Sunbeam, #39, at 2 (while

manufactured or assembled in the U.S., a number of its products

cannot be advertised as ``Made in USA'' because some small component

is sourced from overseas); AIADA, #85, at 2 (no vehicle in mass

production today is made with virtually all U.S. parts); U.S. Rep.

James B. Longley, Jr. (``Longley''), #118.

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

Many of the commenters opposed to the ``all or virtually all''

standard asserted that the strictness of the standard deprives

manufacturers of a selling tool that could help preserve American jobs

and that qualified claims are not an adequate remedy to this problem.

Manufacturers who assemble products here of foreign and domestic

components, they argued, cannot sufficiently distinguish themselves

from manufacturers with lower (or zero) domestic content unless they

are permitted to use ``Made in USA'' claims. In its comment, Stanley

Works contended that imposing the current standard would require many

companies to stop claiming their products are ``Made in the USA'' and

thereby mislead consumers, who would be unaware that important

attributes of tools, such as fit and durability, were attained in

American plants through the labor of American workers. 45

Similarly, the American Electronics Association maintained that the

current standard ``produces a result contrary to the Commission's goal

of creating informed consumers.'' 46

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

\45\ Stanley Works (``Stanley''), #59, at 5, #194, at 1 (current

standard deprives consumers of information that all the physical

qualities and performance characteristics that make the product

desirable to them are a result of American labor, technology, and

capital equipment). See also Sunbeam, #39 (current standard makes it

hard for consumers to distinguish between a product that consists of

an insignificant amount of foreign components or materials from one

that is mostly of foreign origin and imported into the U.S.).

\46\ AEA, #87, at 1. See also AIADA, #85, at 3 (current standard

would only serve to limit the flow of meaningful consumer

information); Balluff, Inc. (``Balluff''), #69, at 1 (current

standard does not help in decision-making process; only hinders

manufacturer from labeling product appropriately).

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

Some opponents of the standard further argued in their comments

that the current standard penalizes companies committed to maintaining

production facilities in the United States. Companies that use some

foreign components or labor in manufacturing may be forced to move

production abroad if they are unable to get the benefits of an

unqualified ``Made in USA'' label. As a result, the commenters

contended, the ``all or virtually all'' standard can have the perverse

effect of moving high-paying jobs overseas, and shrinking the American

manufacturing base. 47

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

\47\ See e.g., Abercrombie, #25, Kennedy, #67; Luggage and

Leather Goods Manufacturers of America (``LLGMA''), #23, at 2.

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

Another criticism of the Commission's ``all or virtually all''

standard is that it is inconsistent with the country of origin rules

applied by other federal agencies and foreign governments.48

The federal standards most frequently cited by commenters in support of

this point were the Buy American Act, which requires that to be

eligible for federal procurement certain

[[Page 25026]]

products must contain 50% domestic content and be subject to a final

act of manufacture in the United States, and the regulations of the

U.S. Customs Service, which look to the country in which the product

was last substantially transformed. These commenters asserted that the

Commission's standard imposes yet another regulatory burden on

manufacturers.49 For example, the National Electrical

Manufacturers Association stated:

\48\ See, e.g., Cohen #199; Gates Rubber Co. (``Gates''), #50,

at 2-3; International Electronics Manufacturers and Consumers of

America (``IEMCA''), #99, at 2-3, #189, at 2; Kerry, #68; Longley,

#118; NCITD, #89, at 2; Polaroid, #90, at 1, 10; Seagate Technology

(``Seagate''), #95, at 2 (Commission should implement Buy American

standard). Cf. General Services Administration (``GSA''), #106, at 1

(Commission should ``explore the viability'' of standardizing its

standard with one or more of the federal government's procurement or

trade standards).

\49\ See, e.g., Caterpillar, #104, at 2; Seagate, #95, at 2.

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

The Commission's labeling standard is inconsistent with other

Federal government programs requirements, resulting in greater

inefficiencies and costs for the American manufacturer. An American

product should be an American product no matter the market in which

it is sold. Under today's conflicting rules, however, NEMA member

companies face high administrative costs associated with compliance

to numerous calculations.50

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

\50\ National Electrical Manufacturers Association (``NEMA''),

#102, at 3.

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

Several commenters maintained that the current standard also

conflicts with other foreign countries' marking rules and thus imposes

significant costs on American companies, making American products less

competitive abroad. For example, 3M asserted that many countries

require that imported goods be marked with the country of origin, and

would accept a product labeled as ``Made in USA'' if it satisfied

Custom's NAFTA Marking Rules. 3M stated, however, that, in many cases,

under the Commission's current standard, it cannot sell that same

product in the United States with a ``Made in USA'' label and must

therefore either develop two inventories of product, one with a ``Made

in USA'' label for export and another with no origin mark for the

United States, or relabel its products.51

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

\51\ 3M, #98, at 5. See also Joint Industry Group (``JIG''),

#88, at 2 (the ``multiplicity of origin rules'' has resulted in

increased costs for U.S. manufacturers, requiring them to establish

special packaging and re-labeling facilities and to design and

manufacture multiple forms of packages for different destination

markets), #196, at 3-4; Okidata (``Okidata''), #42, at 3 (it is

expensive and cumbersome for a company to have to apply different

labels to the same product depending on the product's destination;

different labels and boxes must be printed, the product must be

segregated in inventory, and tracking systems are needed to ensure

that a product is sent to the specific country destination to which

the product is labeled); Longley, #118, at 1 (the Commission should

``consider a standard that conforms to that articulated by other

government agencies so that domestic manufacturers are not

disadvantaged by: (1) having to meet one standard for their exports

and another for their goods sold within the U.S.; and (2) having to

provide more information on labels than what is required to be

placed on the labels of imported goods. U.S. industry must not be

placed at a competitive disadvantage.'').

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

A further criticism raised by some opponents of the ``all or

virtually all'' standard was that the standard is not adequately

defined and therefore fails to provide sufficient guidance to industry.

Commenters noted, for example, that the standard as it currently exists

gives no guidance as to how far back in the production process a

manufacturer must go in determining U.S. parts, material, and labor

content. 3M contended that the current standard does not provide a

clear method for determining permissible foreign content, and argued

that, as a result, many manufacturers are unable to properly determine

when they may mark a product ``Made in USA.'' 52 Moreover,

the Joint Industry Group stated:

\52\ 3M, #98, at 4. See also NCITD, #89, at 2 (because there is

no reliable definition, the current standard is difficult to follow;

not clear how far back in the manufacturing process a company must

go to meet the standard--for example, whether the iron ore that

became the steel tubing for a bicycle must have been mined in the

U.S. before the bicycle can claim to be made in the U.S.); Paul

Gauron for New Balance, Tr. at 162; Balluff, #69, at 2.

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

The multiple questions asked in [the Commission's April 1996]

request for comments regarding what constitutes a `step' back in

manufacturing is indicative of the complexity and subjectivity of

this yet to be defined methodology. In a practical business sense,

this complexity and subjectivity can only evolve into a standard

that is equally cumbersome.53

\53\ JIG, #196, at 2.

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

Finally, some of those commenters opposing the current standard

specifically rejected the utility of using qualified claims. Qualified

claims, they contended, will not solve the problems with the ``all or

virtually all'' standard, but would instead be costly, impractical, and

confusing to consumers. One commenter suggested that a qualified claim,

such as ``Made in USA with domestic and foreign parts,'' would not

allow consumers to distinguish between goods made with significant or

minimal foreign parts and would not assist with their decision-making

process. 54 Another commenter argued that consumers

examining a qualified claim would not be informed that a manufacturer

was unable to obtain all of a product's components domestically, and

that, without the cost savings realized from sourcing some components

offshore, the manufacturer could not continue to maintain its U.S.

factory and price its products competitively. 55

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

\54\ FIA, #52, at 3, #177, at 7.

\55\ New Balance, #44, at 22-23. See also BMA, #86, at 6 (a

claim that a bicycle was ``Assembled in the USA from 75% US parts

and labor'' would fail to ``communicate the simple, accurate `Made

in USA' message that Huffy, Murray, and Roadmaster are entitled to

convey: that their bicycles are produced in American factories and

represent the highest commercially feasible level of American

materials, labor and craftsmanship at a certain price level'').

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

Some comments also contended that qualified claims put U.S.

manufacturers at a disadvantage relative to importers who, in most

instances, can indicate a single country of origin, regardless of the

origin of a product's components.56 Other commenters

expressed concern that space limitations may prevent a lengthy

disclosure on the labeling of small consumer items,57 and

that such labeling may not comply with the customs requirements of

foreign countries, which, they asserted, generally require a simple,

clear ``Made in USA'' label. 58 Some comments noted that,

because sourcing requirements and parts costs change continually, any

specific qualifier based on percentages, such as ``Made in USA using

65% U.S. parts,'' would have to be constantly changed at great expense

to the company.59

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

\56\ E.g., New Balance, #44, at 22-23.

\57\ E.g., FIA, #52, at 3: 3M, #98, at 17 (manufacturers may

have to increase a product's packaging size to accommodate a

lengthier qualified marking).

\58\ E.g., #52, at 3; JIG, #88, at 11 (qualified origin claims

are often not recognized as legitimate claims resulting in customs

delays or denied entry of merchandise); 3M, #98, at 19-20 (it is not

certain that other foreign governments would accept a qualified

mark, thereby requiring costly relabeling of products); Polaroid,

#90, at 8.

\59\ E.g.,Electronic Industries Association (``EIA''), #84, at

4, #193, at 4: NEMA, #102, at 5 (qualified claims are unrealistic

due to the complex nature of electrical products and the

administrative costs associated with calculating comparative or

qualified claims).

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

C. Percentage Content Standard

1. Comments Supporting a Percentage Content Standard

Approximately 13 individual consumers and 21 other commenters

favored the adoption of a specific percentage content standard for

unqualified ``Made in USA'' claims. Supporters of this standard include

4 members of Congress; 60 6 trade associations;

61 10 manufacturers and other corporations, 62

and 1 nonprofit organization.63

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

\60\ Kerry, #68, Browder, #119, U.S. Rep. Barney Frank

(``Frank''), #140 (favoring permitting manufacturers to use a ``Made

in USA'' label when they have achieved ``a certain minimum amount of

domestic content,'' but not specifying a specific minimum

percentage); Longley, #118.

\61\ APRA, #30, BMA, #86, at 2-3; FIA, #52, at 3-4, 6, 8-9,

#177; LLGMA, #23, Packaging Machinery Manufacturers Institute

(``PMMI''), #56, RPFMA, #32, at 2,6, #178.

\62\ American Export Association, (``American Export''), #291;

B&W #96; Conair Corp. (``Conair''), #155; Cranston, #38; New

Balance, #44, #197; Packard Bell, #64; Seagate, #95; Secant

Chemicals, Inc. (``Secant''), #247; Sunbeam, #39; UTC, #94. See also

Whirlpool Corp. (``Whirlpool''), #54 (supporting adoption of the

NAFTA preference rules or, alternatively, a 50% content standard.)

\63\ Made in the USA Foundation (``MUSA Foundation''), #28.

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

[[Page 25027]]

Of those commenters supporting a standard based on a percentage

content, approximately 3 supported an 80% domestic content standard for

unqualified ``Made in USA'' claims and at least 6 others supported a

75% standard.64 Most, however, favored a standard permitting

``Made in the USA'' claims for items that undergo final assembly in the

United States and consist of more than 50% domestic content.

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

\64\ American Export, #291 (supporting an 80% standard); MUSA

Foundation, #28, at 4, 14 (supporting a 75% standard; in addition,

would permit a product to be labeled ``Assembled in USA'' if it has

50% or more U.S. content); APRA, #30, at 5 (supporting a 75%

standard and asserting that this would allow items ``substantially

processed or assembled'' in U.S. to claim ``Made in USA'' without

diluting message to consumers); Sunbeam, #39, at 2 (supporting a

standard requiring at least 75% of cost attributable to component

parts made in U.S., and at least 75% of cost of labor performed in

assembling the product into the form in which it is introduced,

delivered, sold offered, or advertised, to be incurred in U.S.). In

addition, approximately two individual consumers supported an 80%

standard; three supported a 75% standard; two supported a 70%

standard; and one supported at 65% standard.

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Many of those commenters favoring a 50% standard argued that it is

more practical than the ``all or virtually all'' standard in today's

world. The Bicycle Manufacturers of America, for instance, suggested

that requiring a domestic contribution of at least 50% would be ``more

commercially realistic'' given the globalization of the economy.

65 The Rubber and Plastic Footwear Manufacturers Association

stated: ``Any formula which deviates to a considerable degree from this

proposal would have the effect of defeating consumers' desires for

American-made rubber footwear or slippers, since the domestic plants of

most such manufacturers are competitively dependent on the need to use

one or more imported components.'' 66

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\65\ BMA, #86, at 2.

\66\ RPFMA, #32, at 6.

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Some comments suggested that adoption of a 50% standard would take

into consideration that particular components or raw materials may be

unavailable in the United States. Packard Bell Electronics stated that,

to the best of its knowledge, no personal computers sold in the United

States currently are able to carry a ``Made in America'' label because

none is made with all or virtually all U.S. components and labor. In

part, this is because in many industries, particularly in consumer

electronics, some types of components are not manufactured at all in

the United States, or are domestically manufactured in such small

quantities that it is impossible to obtain the volume of U.S.-made

components necessary to support large manufacturing

operations.67 Other commenters agreed.68

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\67\ Packard Bell, #64, at 2.

\68\ See e.g. Seagate, #95, at 3; Whirlpool, #54, at 1-2.

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In addition to being more realistic than an all or virtually all

standard, some commenters also argued that a 50% standard would ensure

that a ``Made in the USA'' claim would be limited to products with

substantial U.S. content. The Rubber and Plastic Footwear Manufacturers

Association concluded that a 50% standard ``requires a `substantial'

share of components and labor to be of American origin,'' and provides

``consumers who prefer American-made products because of their desire

to preserve American jobs and/or quality'' with the information they

need to choose between competing products and manufacturers with an

``effective way of distinguishing between the output of American plants

and that of foreign plants.'' 69 By contrast, it asserted

that ``a final assembly, substantial transformation or significant

processing test, standing alone without a required percentage of

domestic value and/or labor, would so dilute the significance of a Made

in USA logo * * * as to be virtually meaningless.'' 70

Seagate Technology similarly maintained that a standard that requires

that more than 50% of the value of the parts and components be

domestically produced and that the final act of ``manufacture'' take

place in the U.S. is sufficient to protect consumers' expectations

concerning the ``Made in USA'' mark.71

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\69\ RPFMA, #32, at 2, 6.

\70\ Id., #178, at 2-3.

\71\ Seagate, #95, at 6 (citing with approval the Buy American

Act).

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Some commenters further argued that a 50% U.S. content standard

also would support the creation or retention of U.S. jobs. New Balance

Athletic Shoe, Inc., for example, asserted:

For industry, given that there are strong economic incentives to

move offshore and dramatically reduce labor and other costs,

whatever advantage might accrue from use of the ``Made in USA''

label provides at least some incentive to stay in the U.S. to

counterbalance the clear economic benefits of locating elsewhere. *

* * A standard allowing the use of ``Made in USA'' claims when a

manufacturer uses a majority of domestic materials and labor would

help to level a very uneven playing field.72

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\72\ New Balance, #44, at 21-22, #197, at 3.

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Footwear Industries of America agreed, stating that a 50% U.S. content

standard ``would have the advantage of encouraging American companies

to do more domestic sourcing so that they could proclaim their American

content,'' while still giving them sufficient flexibility to maintain

their labeling even if their sourcing changed somewhat during the

manufacturing process.73

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\73\ FIA, #52, at 3-4.

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Some commenters supporting a 50% standard pointed to the wide

variety of regulations governing domestic content claims both within

the U.S. and internationally (e.g., Customs' rules, FTC standards, the

Buy American Act, the North Atlantic Free Trade Agreement, the World

Trade Organization's potential standards), and suggested that the

Commission adopt a standard that is consistent with an existing

test.74 Seagate Technology urged the Commission to adopt the

50% standard of the Buy American Act, arguing that this is an

established standard with which the industry is well-versed and

knowledgeable, and that it would avoid burdening U.S. manufacturers

with yet another new and different standard.75

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\74\ E.G., Seagate, #95, at 3, 6; B&W, #96, at 2-3; American

Association of Exporters and Importers, (``AAEI''), #37, at 2, 4-5;

Balluff, #69, at 2.

\75\ Seagate, #95, at 2-3.

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Seagate Technology, along with several other commenters, further

maintained that the Buy American Act's 50% U.S. content standard,

coupled with a requirement for final assembly in the U.S., would be

consistent with consumers' expectations and the need for accurate

product information. Thus, Seagate asserted:

The Buy American Act standard has been in existence for more than

60 years and is well understood in the computer industry. It is

sufficient to protect consumers' expectations concerning the ``Made in

USA'' mark because it both requires (1) a significant amount of U.S.

content, i.e., more than 50% of the value of the parts and components

must be domestically produced and (2) that the final act of

``manufacture'' take place in the United States. If clear guidelines

are developed concerning the elements of value that are considered in

the 50% test as well as the meaning of the term ``manufacture,'' the

Commission can be assured that it has protected consumers''

expectations that significant U.S. labor and jobs were involved in the

creation of the product that is being purchased.76

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\76\ Id. 2. See also RFPMA, #32, at 6; New Balance, #44, at 26-

27; B&W, #96, at 2 (supports adoption of a Buy American Act 50%

domestic content standard because it will provide certainty to

manufacturers and still properly protect consumer expectations);

FIA, #52, at 4, #177, at 3 (1995 FTC consumer perception study

supports view that 50% U.S. content plus final assembly in U.S.

would satisfy consumer perception of significant processing in

U.S.), at 6-7 (50% U.S. content plus final assembly in U.S. would

generally ensure that product would have a new name, character and

use as a result of U.S. operations would fulfill Customs'

substantial transformation requirements, and would comport with

consumer perceptions).

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[[Page 25028]]

2. Comments Opposing a Percentage Content Standard

Commenters who specifically opposed adopting a percentage content

standard for unqualified ``Made in USA'' claims generally fell into two

groups. One group, composed of at least 14 commenters 77

(and generally supportive of a substantial transformation-type

standard) was concerned that the calculations required by any

percentage standard would be onerous. The other, composed largely of

those who supported the current standard, 78 was primarily

concerned that a 50% standard was too low and unlikely to result in an

appropriate level of U.S. content.

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\77\ AAEI, at 346-347; Balluff, #69; Caterpillar, #104; Compaq,

#62; Gates, #50; IEMCA, #189; International Mass Retail Association

(``IMRA''), #46; JIG, #88; NCITD, #89; Polaroid, #90; Red Devil,

Inc. (``Red Devil''), #139; Stanley, #59; 3M, #98 U.S. Watch

Producers in the U.S. Virgin Islands (Watch Producers''), #192;

Writing Instrument Manufacturers Association, Inc. (``WIMA''), #133.

See also AAF, #100 (advocating a case-by-case approach and

criticizing a bright-line percentage standard).

\78\ E.g., AGs, #43; American Hand Tool, #186; Deere, #57;

Jefferson Democratic Club, #61; Vaughan & Bushnell, #191; Weldbend,

#190. Most of those supporting a 100% standard, of course, either

explicitly or implicitly rejected adoption of a lower percentage.

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A number of commenters opposing a percentage content standard

stated that adoption of any such standard would be arbitrary and

emphasized that a single percentage would not be appropriate for all

manufacturing processes. In the International Mass Retail Association's

view, the Commission cannot pick a single number--such as 75% or 50%

value--and create a yardstick that will be fair or non-deceptive,

because the value added depends so much on the type of

product.79 The Joint Industry Group agreed, maintaining that

the selection of any quantitative basis for an advertising or labeling

claim is necessarily arbitrary. If a 50% U.S. content rule is adopted,

for example, there is likely to be no appreciable difference in goods

featuring 49.5% and 50.5% U.S. content, respectively--although the

goods would have different labeling and advertising requirements under

such a test.80 Further, Gates Rubber Co. asserted that

differences in relative domestic content may be found where identical

constituent parts are imported from different countries at different

costs. Alternatively, the same operations can be performed in the U.S.

yet the domestic content will vary based on wage rates, yields,

variable material costs, capacity utilization, or other factors.

Fluctuations in exchange rates could cause origin to change over time,

if a bright-line percentage-of-value test is adopted.81

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\79\ IMRA, #46, at 8-9. See also Stanley, #59, at 8 (no specific

percentage content could be applied across the board that could

serve as a useful guide for determining whether consumers may be

deceived).

\80\ JIG, #88, at 8-9. See also Polaroid, #90, at 6; AAF, #100,

at 3-4 (strict thresholds, e.g., 75%, likely to deprive consumers of

valuable information; there is no useful distinction between

products 70% and 75% American made).

\81\ Gates, #50, at 2.

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Several commenters opposed adoption of a percentage content

standard because of the administrative burdens and costs it would

impose on companies. Compaq Corp., for example, stated that percentage

content tests are arbitrary, difficult to administer, and can lead to

absurd or anomalous results.82 Similarly, the Joint Industry

Group and Polaroid maintained that minor changes in a producer's

sourcing patterns, in the price for a given material, and variances in

depreciation, units produced and other fixed and variable dependent

cost allocations can change the result of a country-of-origin marking

determination.83 According to Deere and Co., many components

may be outsourced and shipped to the manufacturer in an assembled

state. Although unknown to the manufacturer, some of the parts of the

purchased component may be foreign sourced. Therefore, companies may

face many problems in determining the source of all subcomponents and

then determining the ``Domestic Content'' of a finished

product.84 The Joint Industry Group and Polaroid asserted

that a percentage content standard also would require companies to

conduct detailed internal cost analyses in order to accurately

determine the exact domestic content for their products. Furthermore,

as sourcing patterns shift, and prices of materials, labor, and other

fixed and variable cost allocations change, companies would have to

update their cost/value analyses constantly.85 Thus, a cost-

of-production or value-added requirement, these commenters argued,

could add a burdensome and complicated new layer to the rules-of-origin

requirements already faced by manufacturers.

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\82\ Compaq, #62, at 5 (noting, for example, that two companies

performing the same operations in U.S. may receive different origin

determinations simply because they paid different prices for a given

material or component).

\83\ JIG, #88 at 8-9, #196, at 2; Polaroid, #90, at 5-6. (two

companies performing the same operations in U.S. may receive

different origin determinations simply because they paid different

prices for a given material or component).

\84\ Deere, #57, at 1.

\85\ JIG, 88, at 9, #196, at 2; Polaroid, #90, at 7.

See also #98, at 18 (the added accounting requirements associated

with a value content test would be overwhelming); WIMA, #133, at 3,

5 (questions will continually arise regarding accounting, valuation

and profit methodology; whatever the specific percentage standard,

would require a complex set of calculations); NCITD, #89, at 3

(would require substantial investigation, calculation, and paperwork

from too many sources).

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The International Electronic Manufacturers and Consumers of America

summarized the burdens:

An * * * important reason for opposing a percentage content

standard is the complexity such a rule would impose on producers and

marketers of goods. A percentage content standard, no matter what

specific percentage is chosen, poses an accounting nightmare for

producers of sophisticated electronic products, with components and

production costs from multiple sources. A cost-of-production or

value added requirement would add a burdensome and complicated new

layer to the rules of origin requirements already faced by IEMCA

members. Moreover, * * * cost fluctuations for components in

electronic products would render such a system completely

inconsistent and unworkable; a product might pass, e.g., a 50%

content test one day and, after component cost fluctuations, fail

the same test on another day, even though the exact same product

using the exact same foreign and domestic inputs is ``made'' in the

United States.86

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\86\ IEMCA, #189, at 6.

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Given all of the variables in the production process, one

participant in the workshop, a representative of the American

Association of Exporters and Importers, argued that it would very

difficult to know in advance whether the finished product would meet

the percentage threshold. The American Association of Exporters and

Importers representative expressed concern that a manufacturer may

prepare advertising and packaging fully anticipating to be able to

claim ``Made in the USA'' for the product, only to find that, during

production, a currency fluctuation occurs and the product no longer

meets the standard.87

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\87\ Gail Cumins for AAEI, Tr. at 346-247.

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For this reason, some commenters also suggested that a percentage

content standard would be expensive and difficult for the Commission to

enforce. The Stanley Works and the Joint Industry Group maintained that

the enforcement effort required would be enormous and wholly

inconsistent with the current government downsizing trend.

88

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\88\ Stanley, #59, at 9; JIG, 88, at 9-10. See also

Polaroid, 90, at 7-8; WIMA, 133, at 5 (percentage

content standard would require constant case-by-case basis

examination by the FTC).

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[[Page 25029]]

The Attorneys General expressed similar reservations, albeit from

the contrasting perspective of ``all or virtually all'' supporters,

about the application of a percentage content standard and the

difficulty of enforcing such a standard. In addition, the Attorneys

General suggested that in some circumstances a percentage content

standard might distort the relative weight of U.S. and foreign content.

The Attorneys General thus urged the Commission not merely to apply

mechanically such a standard:

In applying the formula, the FTC would need to create strict

definitions of raw materials and would have to anticipate an endless

number of contexts in which a manufacturer might wish to make a Made

in the U.S.A. claim. While cost might be the best way to compare

domestic and foreign content in many instances, sheer monetary

measures are not universally appropriate. Indeed, rote application

of any formula could lead to the anomalous result that a shirt made

in a ``sweatshop'' in a foreign country from materials originating

in the U.S.A. could be labeled as Made in the U.S.A. if the cost of

the labor comprises a small portion of the product's total cost.

Moreover, we have seen no consumer surveys linking consumer

perception of Made in the U.S.A. to the cost of component parts as

opposed to size, prominence or number of the component

parts.89

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\89\ AGs, #43, at 7.

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

Several commenters also opposed a percentage content standard

because it does not reflect consumer understanding. The International

Electronics Manufacturers and Consumers of America, for example, argued

that the consumer survey results did not demonstrate that consumers

understand ``Made in USA'' to mean that some specific minimum

percentage of the production costs are domestic, and that there is no

indication that buyers of electronic products focus on the specific

percentage of domestic or foreign content in their understanding of a

``Made in [anywhere]'' marking.90 Some commenters supporting

the current standard emphasized that a percentage content standard

would be at odds with consumer perceptions by permitting items with

significant foreign content to be claimed ``Made in USA.'' The American

Hand Tool Coalition, for example, asserted that percentage thresholds,

whether 50% or 70%, are inconsistent with consumers' interpretation of

``Made in USA'' and would result in deception of a large proportion of

the U.S. consuming public.91 Along these lines, a

representative from the International Brotherhood of Teamsters stated

at the workshop:

\90\ IEMCA, #189, at 6.

\91\ American Hand Tool, #186, at 21. See also Vaughn & Bushell,

#97, at 3-4 (would depart from consumer perceptions and generate

considerable confusion in the marketplace; even 90% threshold could

permit some tools manufactured with foreign-forged metal to qualify

for the ``Made in USA'' label; consumers would not be able to

distinguish between genuine domestically forged metals and imported

substitutes).

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

I think one of the real problems as [a] public policy kind of

matter is that for the FTC to come out and say it's okay for the

``Made in America'' standard to apply to something which has as

little as 50 percent American content can only lead to increased

cynicism, increased disbelief, increased inability of consumers to

pay any attention whatsoever, and to have any of these advertising

slogans or anything else to have meaning.92

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\92\ Sarah Vanderwicken for IBT, Tr. at 250-251.

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

Finally, some commenters supporting an ``all or virtually all''

standard expressed concern that a percentage content standard may hurt

domestic jobs and industry. For example, a participant at the public

workshop suggested that manufacturers whose domestic content exceeds

the minimum percentage required to claim ``Made in USA'' (for example,

50%) will have an incentive to ``move some production offshore so they

still stay within whatever is the tolerance level to make the claim,

but save on cost.'' 93

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\93\ Jeanne Archibald for American Hand Tool, Tr. at 348. See

also UAW, #93, at 3.

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3. Calculation of U.S. content

Under any percentage content standard, a marketer must determine

how to measure the value of U.S. content. In response to questions

posed in the Commission's Federal Register notices, a number of

comments discussed which costs should and should not be included, as

well as how far back in the manufacturing process to go in making the

calculation.

a. Costs to be included. There was a considerable range of opinion

as to the type of costs that should be included in a determination of

U.S. content. One commenter, the Retired Workers Council, Region I-A,

of the UAW, suggested that any calculation of U.S. content should be

based on labor hours and should exclude ``[o]verhead, advertising [and]

financing at any point.'' 94 At the other end of the

spectrum, Balluff, Inc., proposed that the definition of U.S. content

should extend to costs of development, engineering, profit, and the

overhead costs to maintain the product's made in USA

status.95 The largest number of commenters suggested that

all direct manufacturing costs, including manufacturing overhead, be

included in the computation of U.S. content.96 Hager Hinge

stated ``[T]he calculation should be made on a labor and material cost

basis only, including direct overhead.'' 97 Conair Corp.

suggested that the determination of domestic content should include

labor and fringe benefits for shipping, receiving, warehousing, and

packaging as well as overhead and the cost and amortization of capital

equipment and square footage.98

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\94\ UAW/RWC, #33, at 2.

\95\ Balluff, #69, at 3.

\96\ E.g., FIA, #52, at 1, 4, 6-9, #177, at 1, 4-5; New Balance,

#44, at 26. See RPFMA, #32, at 5, #178, at 4; Dynacraft, #173, at 9;

(``The Ad Hoc Group''), #183, at 2-3; American Hand Tool, #186, at

30; AAEI, #187, at 5; and Hager, #160, at 2.

\97\ Hager, #160, at 2.

\98\ Conair, #155, at 1.

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A few comments specifically addressed whether profit should be

included in the calculation of U.S. content. Seagate Technology stated

that the profit made by the final assembler in the U.S. should

constitute part of the domestic value.99 Hager Hinge,

however, insisted that ``profit is an entirely separate issue and

should not be a part of the calculation.'' 100

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

\99\ Seagate, #95, at 6. See also Balluff, #69, at 3.

\100\ Hager, #160, at 2. See also UTC, #94, at 2; NEMA, #102, at

8; American Hand Tool, #186, at 30; and FIA, #52, at 8.

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

The commenters also expressed a variety of opinions as to whether,

and to what extent, raw materials should be included in the calculation

of U.S. content. At least five commenters maintained that raw material

costs should be included in final product cost.\101\ Others, however,

suggested that raw materials that were not direct inputs into final

products should be excluded.\102\ A few commenters suggested that the

Commission exclude from total product cost only a narrowly defined

class of raw materials. The Ad Hoc Group, for example, proposed

[[Page 25030]]

excluding natural resources (which it defined as ``products such as

minerals, plants or animals that are processed no more than necessary

for ordinary transportation'') that are not indigenous to the United

States.\103\ Similarly, the Attorneys General indicated that only

materials ``not significantly transformed from their natural

conditions'' should be excluded.\104\ Finally, some commenters proposed

industry-specific limitations on the inclusion of raw materials.\105\

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

\101\ MUSA Foundation, #28, at 12-13; Seagate, #95, at 6;

Conair, #155; American Hand Tool, #186, at 17-20; AAEI, #187, at 6.

See also UAW, #174 at 3 (in suggesting further definition of the

``all or virtually all'' standard, would not create a blanket

exception for all raw materials because, for some products, raw

materials will account for a large share of final product cost,

while for others, raw material costs will be negligible).

\102\ FIA, #52, at 6-7 (include raw materials in cost of

materials but only if within one-step back; if not, exclude because

it is infeasible to make sellers determine the source of

subcomponents and other inputs that are incorporated into the parts

they purchase); Balluff, #69, at 3 (raw materials costs should be

used in determining the calculation for a subassembly if the only

product the company was producing was from raw material, e.g., steel

manufacturers, oil refineries, diamond producers). See also B&W,

#96, at 3 (foreign raw materials should be considered part of U.S.

content if they undergo significant processing in the U.S. and are

then used further in producing the finished product).

\103\ Ad Hoc Group, #183, at 3. See also American Hand Tool,

#186, at 19-20, (opposing exclusion of raw materials, but supporting

a similar definition if such materials are to be excluded); FIA,

#177, at 4 (exclude raw materials one-step back only if not

indigenous to the United States).

\104\ AGs, #43, at 10-11.

\105\ E.g., APRA, #30, at 4 (define raw materials in the

automotive rebuilding industry to exclude cores, e.g., old motor

vehicle parts); EIA, #84, at 7 (raw materials of electronics

industry are electronic or mechanical piece parts, i.e.,

transistors, capacitors, terminals, wiring harnesses, screws, DRAMs,

LEDs, plastic parts, which generally are ordered from piece part

suppliers). See also UAW, #174, at 3 (asserting that the definition

of raw materials may not be standard across industries and citing as

an example that coated alloy steel could be considered a raw

material by some companies and a manufactured product by others).

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b. How far back to look. In its October 18, 1995 and April 26, 1996

notices, the Commission sought comment as to how far back in the

production process marketers should look in calculating the percentage

of total product cost attributable to U.S. content. Specifically, in

its questions about implementation of the all or virtually all and

percentage content standards, the Commission sought comment on whether

it was adequate for a marketer to look only ``one step back'' in the

manufacturing process, i.e., to where the immediate inputs into the

final product were produced, or whether the marketer should look

further back, i.e., to where the subcomponents that went into that

input were produced. In other words, in determining what percentage of

a refrigerator is U.S. content, is it adequate to know that the

compressor underwent final production in the United States, or must the

marketer also inquire as to where the parts that make up that

compressor were made? The Commission further sought comment on how to

define a ``step'' for these purposes.

Most of the commenters who addressed how far back manufacturers

should look to determine the amount of domestic content advocated a

``one step back'' approach. 106 They contended it would be

unduly burdensome and impractical to require manufacturers to make

inquiries beyond the suppliers from whom they purchase materials or

components. 107 Footwear Industries of America, for example,

explained:

\106\ E.g., LLGMA, #23, at 4; RPFMA, #32, at 5, #178, at 4; FIA,

#52, at 1, 6-8, #177, at 1, 3-4; EIA, #84, at 8, #193, at 2-4; Ad

Hoc Group, #183, at 2.

\107\ E.g., RPFMA, #32, at 5, #178, at 4; FIA, #52 at 7-8, #177,

at 3-4.

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

While manufacturers should be able to determine the source of

raw materials and components they purchase directly, it is entirely

infeasible to make sellers determine the source of subcomponents and

other inputs that are incorporated into the parts they purchase.

Suppliers often buy inputs from a variety of sources, depending on

market conditions, and do not keep track of which inputs go into

which end product. To require such comprehensive tracking would be

difficult for every manufacturer, but exceptionally hard for those

that use a substantial quantity of small inputs from various

countries. 108

\108\ FIA, #52, at 7. See also id., #177, at 3-4.

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

And, in a similar vein, the Rubber and Plastic Footwear

Manufacturers Association commented:

Anything beyond one step back would create an unduly formidable

burden which manufacturers should not be expected to meet,

particularly since the net effect on American employment and quality

of product would in the vast majority of cases be de

minimis.109

\109\ RPFMA, #32, at 5. See also id, #178, at 4.

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

A few commenters supporting an all or virtually all standard

submitted comments opposing a ``one step back'' approach. Dynacraft

Industries stated that such an approach was not appropriate for the

bicycle industry, and urged the Commission to require that U.S. content

be calculated based on all stages of production. It asserted, among

other things, that the ``one step back'' approach could lead to

circumvention of the standard by, for example, permitting an

unscrupulous party to restructure sourcing to purchase through

middlemen in the U.S. and claim the part is of U.S.

origin.110 The American Hand Tool Coalition similarly

opposed allowing manufacturers to look only one or two steps back in

the manufacturing process to determine the origin of a product's

components and therefore the origin of the product. The Coalition

asserted that, regardless of how a manufacturing ``step'' is defined,

such an approach would be subject to manipulation and ``would conflict

with consumers' understanding of `Made in USA.' '' 111

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

\110\ Dynacraft, #173, at 8.

\111\ American Hand Tool, #186, at 14-17.

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

The United Auto Workers suggested that in most cases, looking ``two

steps back'' to unrelated supplier firms would be sufficient to

identify nearly all foreign content. It suggested that ``two step

back'' information would be critical for complex products such as

electronics that use imported components. 112 The United

Auto Workers also concluded, however, that in many cases obtaining the

first tier supplier's U.S. content level (``one step back'') should be

sufficient. 113

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

\112\ UAW, #174, at 2-3.

\113\ Id. at 3 (noting, for example, that if a part that

accounted for 10% of the value of the final product was 50% foreign

value, the contribution of this part to the foreign value of the

final product would be only 5%; on the other hand, if the 50%

foreign part accounted for 30% of final product's value, this

foreign content alone would account for 15% of final product's

value).

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D. Substantial Transformation Standard

1. Comments Supporting a Substantial Transformation Standard

The Commission received comments from approximately 24 commenters

favoring some version of a ``substantial transformation''

standard.114 These commenters included 10 trade

associations,115 12 manufacturers,116 a law firm

specializing in international trade law,117 and the U.S.

Customs Service.118 While some of the commenters in this

group expressed a preference for substantial transformation generally,

or for any standard consistent with that of the U.S. Customs Service,

others advocated adoption of a specific form of substantial

transformation, such as the tariff-shift approach employed by the NAFTA

Marking Rules.119 In addition, some commenters urged the

Commission eventually to adopt whatever standard is ultimately

[[Page 25031]]

accepted by the WTO.120 At least one commenter suggested

that adopting the actual Customs rules was less important than that the

Commission adopt a standard that, like substantial transformation,

focused on the processing of a product rather than on the value of its

components.121 At the workshop, others also voiced support

for a ``processing'' approach.122

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\114\ In addition, approximately 4 individual consumers

indicated support for a standard by which a product put together or

assembled in the United States could be labeled Made in USA even if

it was assembled from imported parts.

\115\ IEMCA, #99, #189; JIG, #88, #196; U.S. Apparel Industry

Council (``USAIC''), #24; WIMA, #133; AAEI, #37, #187; NCITD, #89;

Watch Producers, #192; IMRA, #46, #184; American Wire Producers

Association (``AWPA''), #65 (advocating adoption of the Customs

standard specifically for steel wire, steel wire products and wire

rod); Committee of Domestic Steel Wire Rope and Specialty Cable

Manufacturers (``Domestic Steel Wire Rope''), #63 (advocating

adoption of the Customs standard specifically for steel wire rope).

\116\ Balluff, #69; Caterpillar, #104; Compaq, #62; Gates, #50;

Okidata, #42; Polaroid, #90; Red Devil, #139; Timkin Co. and

Torrington Co. (``Timkin/Torrington''), #51 (advocating adoption of

the Customs standard specifically for antifriction bearings);

Toshiba, #34; Stanley, #59, #194; 3M, #98, #198. See also Packard

Bell, #64 (suggesting that adoption of a WTO standard would be the

best solution, but supporting a percent content standard in the

interim).

\117\ Meeks and Shephard (``Meeks''), #105.

\118\ Customs, #29 (suggesting for unqualified ``Made in USA''

claims that a product be substantially transformed in the United

States and have a 35% U.S. value-content).

\119\ AAEI, #37, #187; Gates, #50; 3M, #98, #198; NCITD, #89;

Polaroid, #90.

\120\ AAEI, #187; Compaq, #62; USAIC, #24; IEMCA, #99, #189;

IMRA, #46, #184; Stanley, #59, #194; JIG, #88, #196; Meeks, #105;

3M, #98, #198.

\121\ IMRA, # 46, at 9-11.

\122\ E.g., Cynthia Van Renterghem for NEMA, Tr. at 268; James

Clawson for JIG, Tr. at 389.

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

Many of the commenters favoring a substantial transformation

standard expressed concern that the FTC's standard was inconsistent

with that of the Customs Service. Some remarked on the incongruity of

not being able to mark a product ``Made in USA'' under FTC policy even

though the Customs Service would not require it to be marked with a

foreign country of origin.123 Several of the commenters,

moreover, pointed to the benefits associated with using a standard that

was consistent with that used by a sister federal agency. If FTC policy

was harmonized with Customs rules, Compaq Corp., for example, noted,

``manufacturers would not incur the additional expense of monitoring

compliance with two potentially conflicting origin criteria.''

124 Similarly, the Stanley Works argued that ``Use of

substantial transformation would unify and harmonize domestic marking

regulation. . . . business could look to a single, uniform set of

marking regulations.'' 125 Other commenters noted the number

and variety of laws already in existence related to country-of-origin

labeling and argued that using the substantial transformation standard

used by Customs had the advantage of ``not adding to the regulatory

burden of U.S. companies.'' 126

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

\123\ E.g., Meeks, #105, at 1; Polaroid, #90, at 3.

\124\ Compaq, #62, at 3.

\125\ Stanley, #59, at 8.

\126\ WIMA, #133, at 5. See also Caterpillar, #104, at 2;

Okidata, #42, at 1-2; Toshiba, #34, at 3.

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

In a similar vein, a number of commenters noted that because

businesses must already comply with Customs requirements, the

substantial transformation standard is familiar to industry and can be

readily complied with. Thus, the Joint Industry Group asserted that

application of the substantial transformation standard will ``bring

benefits of predictability, transparency, and enforceability to the

process.'' 127 The American Association of Exporters and

Importers echoed this view, contending that ``the Customs standard,

which has been the subject of thousands of administrative rulings and

court opinions, will be more objective than the FTC standard, which has

never been authoritatively defined.'' 128 The Writing

Instruments Manufacturers Association and the Timkin and Torrington

companies also each praised the substantial transformation test for

establishing a ``bright-line rule.'' 129

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

\127\ JIG, #88, at 3. See also JIG, #196, at 3; IECMA, #99, at

2, #189, at 3 (substantial transformation rule is understandable and

usable, and there is a body of customs law and precedent for

producers of virtually every product to follow).

\128\ AAEI, #37, at 4. See also 3M, #98, at 11, 18 (stating that

the NAFTA Marking Rules ``provide a workable and objective

standard'' and that ``[m]any U.S. manufacturers already are

operating under the NAFTA and performing the required NAFTA Marking

Rule analysis for their products.'' 3M, however, at the same time

characterized the traditional case-by-case application of the

Customs principle of substantial transformation as ``too

subjective.'').

\129\ WIMA, #133, at 2; Timkin/Torrington, #51, at 2. See also

Stanley, #59, at 9.

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

Perhaps the most frequently cited advantage of the substantial

transformation standard, however, was that it is consistent with the

standards used by most other countries, and its adoption was seen by

many of these commenters as an action that would facilitate

international trade. ``Obtaining uniformity and flexibility in country

of origin labeling,'' stated the U.S. Apparel Industry Council, ``would

enable manufacturers to more efficiently supply wearing apparel to an

increased number of countries. This benefits consumers and

manufacturers alike * * *.'' 130 Similarly, the American

Association of Exporters and Importers noted that adoption of labeling

requirements consistent with those of other countries would benefit the

increasing number of companies developing international labels for

their products.131

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

\130\ USAIC, #24, at 3.

\131\ AAEI, #37, at 4-5.

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

Many commenters pointed in particular to instances where a

manufacturer would not be permitted by the FTC to mark its product

``Made in USA,'' but would be required to do so by a foreign country

when the same product is exported.132 ``To meet these

conflicting requirements,'' Polaroid asserted, ``US companies are often

required to establish special packaging and relabeling facilities, and

to design and manufacture multiple forms of packaging for different

destination markets.'' 133 The Stanley Works also

highlighted the costs associated with preparing separate packaging for

domestic and exported products, stating:

\132\ E.g., Caterpillar, #104, at 1-2; IEMCA, #189, at 5.

\133\ Polaroid, #90, at 3. See also IEMCA, #99, at 2.

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

A packaging change alone, without considering the additional

administrative costs associated with maintaining dual inventories,

costs Stanley roughly $250 per stock keeping unit. That amount

multiplied by the thousands of individual products made by Stanley

graphically illustrates the steep, unnecessary costs of maintaining

dual inventories.134

\134\ Stanley, #59, at 6.

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

This theme was reiterated by 3M, which stated that:

With regard to relabeling, 3M has in many cases chosen not to

label its U.S. products with an origin mark (so that they can be

sold in the United States without violating the Commission's

standards), only to have to add a sticker indicating ``Made in USA''

to comply with a foreign country's marking requirement. The

stickering not only increases costs and burdens on 3M, but also

makes the 3M products look less physically attractive to the

consumer.135

\135\ 3M, #98, at 4.

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

Furthermore, several commenters supporting the substantial

transformation standard argued that adoption of this standard was in

keeping with efforts of the United States and other countries, through

the WTO and other means, to harmonize international marking standards.

Thus, one commenter suggested that ``because substantial transformation

is the conceptual basis for emerging international origin standards,

the Commission's adoption of this test would greatly aid international

efforts to harmonize rules.'' 136

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

\136\ Watch Producers, #192, at 2. See also USAIC, #24, at 3

(``uniformity in country of origin rules will meet a stated

objective of NAFTA and the GATT Uruguay Round Agreements'').

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

Finally, a number of commenters argued that the substantial

transformation standard serves to protect consumers. These commenters

noted that the marking requirements applied by Customs were intended,

like the Commission's policy, to ensure that consumers received

accurate information about the origin of the products they

purchased.137 In addition, several commenters pointed out

that, because the FTC and the Customs Service apply different tests, a

``Made in USA'' label had different meaning from one that said ``Made

in [foreign country],'' and that this was likely to lead to

considerable consumer confusion. Observed one commenter, ``A reasonable

buyer surely does not understand that a `Made in U.S.A.' product must

be all or virtually all U.S. content, while a product `Made in Japan'

may, on the other hand, have

[[Page 25032]]

substantial content from other countries.''138 Similarly,

another commenter argued:

\137\ Compaq, #62, at 8; Okidata, #42, at 1-2; Stanley, #59, at

3-4; 3M, #98, at 13.

\138\ Watch Producers, #192, at 11.

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

A ``Made in COUNTRY X'' claim should represent the origin of the

underlying product to consumers in a consistent manner, whether the

relevant country is the United States or any other country. The

long-standing Customs marking rule of origin, based on substantial

transformation, applies to the country of origin markings on all

imports. Consumers should not be faced with a conflicting origin

rule for products marked ``Made in USA.'' 139

\139\ IEMCA, #189, at 3. See also JIG, #88, at 2 (``When a

consumer buys a product labeled ``Made in Japan,'' the consumer

should have the same understanding of that product's origin as one

labeled ``Made in USA'.''); USAIC, #24, at 3 (``It is not realistic

to assume that consumers know or believe ``Made in U.S.A.''

determinations are based on rules which differ from the rule for

``Made in [Foreign Country].'' With uniform rules, consumers will be

able to make informed decisions about product origin without the

confusion now associated with country of origin marking.'').

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

Several of these commenters also argued that the substantial

transformation standard is consistent with consumer perception. One

commenter, for example, suggested that substantial transformation

``fits with general consumer perception that an article is made in the

place where it takes on its final identity or is transformed into a new

item.'' 140 3M asserted that ``consumers are concerned with

the major elements of a product and its final place of manufacture.

Consumers are not concerned with detailed accounting procedures and do

not understand the significance of allocating general overhead

expenses, etc.'' 141 Moreover, some commenters specifically

pointed to the consumer survey evidence as supporting a similar view.

For instance, IEMCA stated that:

\140\ WIMA, #133, at 3 (emphasis in original).

\141\ 3M, #98, at 24.

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

While the results of various consumer surveys presented at the

workshop failed to reveal a universal consumer attitude about the

meaning of ``Made in USA,'' at least one simple perception was

evident: consumers feel that ``Made in USA'' means that the product

was ``made'' domestically. Nothing in the survey results indicate

that consumers typically understand this to mean that 100% of the

content or labor that went into producing all components of the good

was domestic. Rather, as elucidated by several participants in the

workshop, consumers, by and large, view the ``Made in * * *''

language to indicate where the ultimate product ``came into being.''

142

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

\142\ IEMCA, #189, at 3 (emphasis in original).

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

2. Comments Opposing a Substantial Transformation Standard

At least 15 commenters specifically criticized a substantial

transformation standard.143 The most frequent criticism

voiced was that the standard is too low and permits goods with

significant foreign content to be labeled ``Made in USA'' because one

step in the manufacturing process has been performed in the United

States. The Footwear Distributors and Retailers of America maintained

that using a substantial transformation standard, a manufacturer could

claim that its shoes were made in the U.S. if the shoes were assembled

using imported uppers and outsoles:

\143\ American Hand Tool, #91, #186; APRA, #30; Cranston, #38;

Diamond Chain, #55; Dingell, #153; Estwing, #179; FDRA, #27, #172;

FIA, #52, #177; New Balance, #44, #197; RPFMA, #178; Summitville,

#162; Tileworks, #156; UAW, #93, #174; Vaughan & Bushnell, #191;

Welbend, #190. In addition, although the coalition of state

Attorneys General did not specifically address substantial

transformation in their written comments, the coalition's

representative at the public workshop did voice his concerns about

the substantial transformation standard during the proceedings. See,

e.g., Roger Reynolds for AGs, Tr. at 434. Some commenters opposed a

``pure'' form of substantial transformation such as used by Customs

(indicating that in some circumstances such a standard might not

ensure that sufficient work was performed in the United States), but

suggested that a modified version could be acceptable. E.g., EIA,

#84, at 6, #193; BMA, #195.

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

Under the rules promulgated by Customs, footwear assembled in

Country B with an upper manufactured in Country A and an outsole

manufactured in Country C would be labeled as a product of Country

B, without qualification. By the same token, footwear assembled in

this country using both imported uppers and outsole, need not be

marked with a foreign country of origin.144

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

\144\ FDRA, #27, at 3. See also id., #172, at 4-5.

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

The Footwear Industries of America maintained that this problem

extends across an array of products ``because virtually any product

could have a new name, character and use after its foreign components

are finally assembled in the United States.'' 145

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

\145\ FIA, #177, at 6. See also id., #52, at 4.

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

Other commenters also argued that the substantial transformation

standard fails to ensure that products claiming to be ``Made in the

USA'' actually contain significant domestic content. The United Auto

Workers, for example, point to Customs' practice of adding a value-

added test to the substantial transformation standard in certain

circumstances to illustrate the standard's limited domestic content

requirement:

When there is a suspicion that the location of the

transformation has been moved from one country to another to

circumvent a trade law (e.g., antidumping, subsidies), a test that

requires additional value-added is applied. This demonstrates the

minimal local value that is attached to the substantial

transformation; its domestic content is very far from the FTC

standard.146

\146\ UAW, #93, at 3-4.

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

A Bicycle Manufacturers Association representative observed that in

some instances, simple assembly may be enough to constitute substantial

transformation: ``[A]t least in the case of bicycles, * * * the NAFTA

marking rule basically says you take bicycle parts and assemble them

together and make a bicycle, and you have done a substantial

transformation.'' 147 Thus, while BMA did not oppose a

substantial transformation standard, it urged the Commission to include

a provision that would ensure the addition of significant domestic

value.148

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

\147\ Michael Kershow for BMA, Tr. at 187.

\148\ BMA, #195, at 3.

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

Some commenters opposed to the adoption of a substantial

transformation standard contended that, contrary to the supporters'

assertions, the substantial transformation standard does not apply

objective criteria, nor does it afford predictability or consistency in

administration.149 An American Hand Tool Coalition

representative, for example, stated that in Customs' January 1994

notice, Customs noted that `` `the application of the [substantial

transformation] rule involves considerable subjective judgments, that

it's non-systematic, that the judicial and administrative decisions in

one case have little bearing on another case.''' Accordingly, the

American Hand Tool representative did not believe that a substantial

transformation standard would ``give the kind of consistency and

guidance to business that most of the people around this table [at the

workshop] are looking for.'' 150

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

\149\ E.g., FIA, #52, at 5.

\150\ Jeanne Archibald for American Home Tool, Tr. at 373-74.

See also Lauren Howard for FIA, Tr. at 377 (substantial

transformation standard will not give manufacturers clear guidance).

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

U.S. Representative Dingell maintained that the Commission's

standard and Customs' rules serve different purposes and are thus not

inconsistent with each other. He urged that the Commission ``be guided

by its statutory charter of prohibiting unfair or deceptive practices

rather than focusing on the red herring argument made by certain

companies that the FTC and Customs Service should use identical

standards.'' 151 Several commenters agreed with this view,

arguing that the

[[Page 25033]]

Commission's current policy protects consumers from

deception.152

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

\151\ Dingell, #153, at 2. See also Jeanne Archibald for

American Hand Tool, Tr. at 270; American Hand Tool, #91, at 4-5,

#186, at 4, 34; UAW, #174, at 3; Dynacraft, #45, at 4-5, #173, at 4;

Diamond Chain, #55, at 3. Similarly, according to one workshop

participant, substantial transformation is based on manufacturing

processes rather than on consumer perception. Jeanne Archibald for

American Hand Tool, Tr. at 373-374.

\152\ APRA, #30, at 6; Cranston, #38, at 2; Diamond Chain, #55,

at 3.

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

Commenters opposed to the adoption of a substantial transformation

standard further argued that application of the standard would result

in labeling contrary to most consumers' understanding of the phrase

``Made in USA.'' American Hand Tool asserted that in the surveys that

were presented at the FTC's workshop, no respondents indicated that

``Made in the USA'' meant that the product had undergone substantial

transformation or tariff shift in the U.S., or even suggested it meant

creating a distinct article from something else:

Such a concept would require consumers to distinguish among

various manufacturing processes and to identify the point at which

the final product came into being. But the consumer perception

evidence demonstrates the opposite: consumers view ``Made in the

USA'' as applying to all of the materials and labor used to make a

product and do not distinguish among manufacturing steps or

processes. 153

\153\ American Hand Tool, #186, at 31.

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

Noting that the consumer survey presented at the FTC public

workshop found that the majority of consumers would not agree with a

``Made in USA'' label on a product with 50% foreign content, the same

commenter stated that use of the substantial transformation standard

would result in ``deceiving a fairly large segment of the U.S.

public.'' 154 Another workshop participant observed: ``I

don't see any relation of the substantial transformation test to

consumer perception.'' 155

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

\154\ Jeanne Archibald for American Hand Tool, Tr. at 373.

\155\ Roger Reynolds for AGs, Tr. at 434.

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

Finally, the American Hand Tool Coalition questioned whether using

a substantial transformation standard would in fact harmonize the

Commission's standard with other U.S. and international standards. The

Coalition maintained that several of the proponents of a substantial

transformation standard in the Commission's proceeding actually

advocated adopting various modifications to the substantial

transformation standard as applied by the Customs Service. Adopting

such variations, the American Hand Tool Coalition maintained, would not

achieve harmonization with the Customs Service. Moreover, a unified

Customs/Commission standard would nevertheless be inconsistent with the

Buy American Act.156

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

\156\ American Hand Tool, #186, at 34.

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

E. Comments Supporting Other Standards

In addition to the three primary alternatives discussed above, a

number of commenters suggested other possible approaches to the

evaluation of U.S. origin claims. 157 For example, some

commenters suggested that a ``Made in USA'' standard should focus on

the production of ``major'' or ``essential'' components. The Footwear

Distributors and Retailers of America, for example, suggested that the

Commission adopt a standard that permits the use of a ``Made in USA''

label when the ``major component production'' and final assembly takes

place in the United States. 158 Similarly, Manchester Trade

Ltd. argued that products whose ``essential elements'' are produced and

assembled in the United States should be allowed to carry an

unqualified ``Made in USA'' label. 159

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

\157\ As noted above, see supra note 37, there were also

approximately 15 commenters who opposed the current ``all or

virtually all'' standard, but who did not specify a preferred

alternative standard. In addition, there were approximately 33 other

commenters (including approximately 18 consumer commenters) whose

comments did not clearly indicate any preferred standard.

\158\ FDRA, #27, at 2, #172, at 4.

\159\ Manchester Trade Ltd. (``Manchester Trade''), #21, at 2.

See also Federation of the Swiss Watch Industry (``FSWI''), #47 (FTC

should adopt a standard that recognizes the relative importance of

the different parts of a product, such as the importance of the

movement and the casing of a watch). But see Jim Clawson for JIG,

Tr. at 513-514 (discouraging the Commission from adopting a standard

based on essential components because of the difficulty of

determining which components of a product are essential, and because

such a standard may discourage the use of American materials).

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

The National Electrical Manufacturers Association supported a

similar standard. It asserted that, at least for electronic products,

the standard for making an unqualified U.S. origin claim should focus

on whether the product is ``manufactured primarily'' in the United

States. Specifically, if an American electronics producer uses

primarily U.S.-built subassemblies and performs the remaining steps in

the United States, the product should be eligible for a ``Made in USA''

label, regardless of the source of the basic electronic and mechanical

components.160 According to the National Electrical

Manufacturers Association, this standard ``more fairly acknowledges

that the source of electrical products' greatest cost, value, and

essence is found at the subassembly level rather than the basic

component level.''161

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

\160\ NEMA, #102, at 2. See also EIA, #84, at 1-2 (similarly

advocating that ``if a U.S. electronics producer uses primarily

U.S.-built subassemblies and performs the remaining manufacturing

steps in the U.S., that product should be eligible for a `Made in

USA' label, whatever the source of the basic electronic and

mechanical components'').

\161\NEMA, #102, at 2. In NEMA's post-workshop comment, however,

it contended tha tthe Commission shoud defer to the substantial

transformation standard for industrial products, or alternatively,

exclude industrial products ``from anyrule directed to `Made in USA'

claims.'' Id, #182, at 2-3.

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

Other commenters, most notably two trade associations of automobile

manufacturers, specifically objected to any bright-line test for

determining whether a seller can make a U.S. origin claim and instead

advocated the use of a case-by-case approach.162 The

American Automobile Manufacturers Association, for example, stated that

consumers' understanding of ``Made in USA'' claims varies greatly from

product to product, and that this understanding continues to evolve.

Accordingly, it urged the Commission to avoid setting rigid standards

that may become obsolete or cause consumer confusion, and recommended

that the Commission apply well-established principles of advertising

law, considering the express and reasonably implied meaning of the

claim, the materiality to consumers of the claim, and whether the

advertiser has a reasonable basis to make the claim.163 The

Association of International Automobile Manufacturers similarly

asserted that a ``one-size-fits-all standard'' would be confusing, and

that it may be impossible to develop a standard that can accurately

reflect consumer views about all products. It therefore suggested that,

at least for automobiles, the Commission adopt a case-by-case approach

that reviews specific advertising claims and the meaning of those

claims to consumers.164

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

\162\ Association of International Automobile Manufacturers

(``AIAM''), #101, at 2, #180, at 1. See also Toyota, #26, at 2

(suggesting that, with respect to the automotive industry, the

Commission should adopt a traditional reasonable basis standard for

measuring domestic content, rather than a precise formula); AAF,

#100, at 2, 5 (urging the Commission to ``avoid establishing a

bright line definition of ` ``Made in USA'' ' and instead adopt ``a

flexible standard whereby a manufacturer has the ability to make

specific, qualified and substantiated claims about a product'').

\163\ American Automobile Manufacturers Associations (``AAMA''),

#103, at 2.

\164\ AIAM, #101, at 4, #180 at 1-2. Another approach suggested

was to include a grading scale from A+ to F, depending on percentage

of U.S. content. Tech Team, Inc. (``Tech Team''), #307. The

Federation of the Swiss Watch Industry advocated that the FTC adopt

a standard for ``Made in USA'' designations similar to Switzerland's

``Swiss Made'' rule for watches. It said this rule provides that the

watch must contain a Swiss movement (defined as one in which 50% of

the value of the parts are of Swiss manufacture and which is

assembled and inspected in Switzerland), the movement must have been

encased in Switzerland, and the watch must have undergone final

inspection in Switzerland. FSWI, #47, at 4-5.

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

[[Page 25034]]

F. Guidelines Proposed By the Ad Hoc Group

After the workshop, a group of several companies and industry

associations calling themselves the ``Ad Hoc Group'' jointly submitted

as a post-workshop comment proposed ``Guidelines for Making U.S. Origin

Advertising and/or Labeling Claims'' (``Ad Hoc Guidelines'').

165 Central to the Ad Hoc Guidelines are three proposed safe

harbors for making an unqualified ``Made in USA'' claim. Specifically,

the Ad Hoc Guidelines provide that ``a product that contains materials,

parts or components that are not wholly obtained in the United States

can be non-deceptively advertised or labeled `Made in USA''' if one of

three conditions is met:

\165\Ad Hoc Group, #183. The proposal was signed by AAEI, the

Association of Home Appliance Manufacturers (``AHAM''), the

Automotive Parts and Accessories Association (``APAA''), AWPA, BMA,

EIA, IMRA, 3M, and Stanley.

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

(1) the last significant manufacturing process or processes,

which must be more significant than simple assembly or minor

processing, occur in the United States, and the cost of U.S.

processing is at least 50% of the cost of goods sold; or

(2) (i) a majority of all the processing that is normally

undertaken to produce a product takes place in the U.S.;

(ii) such process(es) result in the creation of a new article of

commerce that has a different name, character, and use than the

materials, parts, or components from which it is made; and

(iii) such process(es) when taken together, are more significant

than simple assembly or minor processing and result in a ratio of

the cost of U.S. processing to the cost of goods sold that is not

insignificant; or

(3) the good satisfies a modified version of the NAFTA

Preference Rules.

In addition, the Ad Hoc Guidelines propose establishing a second

tier of U.S. origin claims. Specifically, a product could be labeled

``Wholly made in the U.S.'' (emphasis added) if ``all or virtually all

of the processing, materials, components, and labor used in the

production of product are of U.S. origin.''

Some of the signatories to the Ad Hoc Guidelines also submitted

separate comments emphasizing their support for the Ad Hoc Guidelines.

The American Association of Exporters and Importers explained that the

Guidelines attempt to provide American manufacturers with reasonable

and easily understandable alternative methods for claiming that their

products are ``Made in USA.'' 166 The Bicycle Manufacturers

Association asserted that ``consumers are entitled to expect that a

claim that a product was `Made in USA' means not only--but most

fundamentally--that the product came into being (i.e., was

substantially transformed) here, but that substantial value was added

in the U.S. * * * [E]ach of the three `safe harbors' acknowledge this

principle * * * `` 167 Similarly, the International Mass

Retail Association asserted that, in rejecting both a simple value-

added standard as well as a simple adoption of Customs' substantial

transformation standard, the Ad Hoc Guidelines ``get to the plain idea

of what it takes to `make' something''; accordingly, the proposal

provides guidance to advertisers and avoids consumer deception.

168 The Association of Home Appliance Manufacturers also

submitted a separate comment endorsing the Guidelines and reiterating

its support for the NAFTA Preference Rules as one of the three safe

harbors for making a ``Made in USA'' claim. 169

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

\166\ AAEI, #187, at 2.

\167\ BMA, #195, at 3.

\168\ #184, at 1-4.

\169\ AHAM, #188, at 1-2.

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

Other signatories to the Ad Hoc Guidelines submitted separate

comments suggesting modifications to the proposal. 3M expressed its

support for the Ad Hoc Guidelines, but suggested two additional safe

harbors: (1) that goods be allowed to be labeled ``Made in USA'' if

they are substantially transformed in the United States; 170

or alternatively, (2) that a lesser mark such as ``Country of Origin:

USA'' or ``Product of the US'' (rather than ``Made in USA'') be

permitted when a product is sufficiently manufactured in the United

States to become a U.S. product for international customs purposes

(i.e., is substantially transformed in the U.S.), but would not meet

the standard for an unqualified ``Made in USA'' claim. 171

Under 3M's proposal, to bear the lesser mark: (1) the product would

have to be actually sold in the market that requires the label; (2) the

label would have to be no larger than is necessary to meet foreign

labeling requirements; and (3) the claim could not be repeated in U.S.

advertising unless it could meet the Ad Hoc Guidelines' safe harbors

for unqualified ``Made in USA'' claims. 172

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

\170\ See also AAEI, #187, at 3; EIA, #193, at 8.

\171\ 3M, #198, at 1-2.

\172\ See also IMRA, #184, at 7 (should allow manufacturers to

mark products sold in the U.S. with the words ``Country of origin:

USA'' in limited instances where actual exports of the product are

subject to foreign marking requirements); EIA, #193, at 2 (the

Commission could prevent consumer deception through education

concerning the limited meaning of such marking and through

prohibition on U.S.-origin claims to consumers); JIG, #196, at 3-4

(should the FTC decide that the substantial transformation standard

is not appropriate, advocates establishing a ``safe harbor'' that

would allow companies to provide consumers with country-of-origin

information that also satisfies international origin marking rules).

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

New Balance and Footwear Industries of America, although not

signatories to the Ad Hoc Guidelines, expressed general support for

them, but asserted that any safe harbor for making unqualified ``Made

in USA'' claims should require that a product have over 50% domestic

value. 173 According to New Balance, without this

requirement, products with low domestic content that undergo only final

assembly in the United States could be labeled ``Made in USA'' in some

instances, and in those instances, the label would be deceptive.

174

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\173\ New Balance, #197, at 2; FIa, #177, at 6-7.

\174\ New Balance, #197, at 4.

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In contrast, the American Hand Tool Coalition, and two of its

member companies, submitted comments strongly objecting to the Ad Hoc

Guidelines. The American Hand Tool Coalition asserted that the Ad Hoc

Guidelines are a ``conglomeration of vague and potentially unequal

tests that would promote rather than prevent consumer deception.''

175 Among its specific criticism of the Ad Hoc Guidelines

were: (1) by permitting products with 50% or even more foreign content

to be labeled ``Made in USA,'' the Ad Hoc Guidelines would deceive a

substantial percentage of consumers;176 (2) the two-tiered

approach of ``Made in USA'' and ``wholly Made in USA'' would lead to

consumer confusion and make it difficult for companies that meet the

higher standard to distinguish their products;177 and (3)

the proposed Guidelines would not achieve harmonization with other U.S.

or foreign government standards.178

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\175\ American Hand Tool, #186, Appendix A, at 1.

\176\ Id. at 1, 4-6.

\177\ Id. at 7-8. See also Vaughan & Bushnell, #191, at 2;

Estwing, #179, at 2 (``Only the most vigilant consumers would notice

the difference between the two claims, and even if the distinctions

were noticed, consumers would have no basis by which to discern the

different meanings of the two phrases. Consumers are likely to

assume that [both claims] refer to all or virtually all domestic

origin * * *'').

\178\ American Hand Tool, #186, Appendix A, at 8-0.

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IV. Analysis: General Considerations

The comments submitted to the Commission, as well as the

Commission's independent analysis, suggest a number of factors to be

considered in seeking an appropriate standard for evaluating U.S.

origin claims. The Commission considered consumer perception of such

claims, consistency of the Commission's standard with other, existing

standards,

[[Page 25035]]

and practical issues of implementation. This notice discusses each in

turn.

A. Consumer Perception

1. Studies and Findings

As noted above, Commission staff commissioned a consumer perception

study 179 as part of the FTC's overall review of U.S. origin

claims in advertising and labeling. In addition, some commenters

responded to the Commission's request for further consumer perception

evidence by submitting data of their own.180

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

\179\ Document No. B212883 on the Commission's public record.

\180\ IMRA, Document No. B212895; Crafted with Pride, Document

No. B212908; American Hand Tool (Danaher Tool Group), Document No.

B212910; New Balance, Document No. B212922; National Consumers

League, Document No. B212934; BGE, Document No. B212946.

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

The FTC staff-commissioned study consisted of two parts. The first

part (``1995 FTC Copy Test'') was a traditional copy test in which

subjects were shown advertisements containing one of five qualified or

unqualified U.S. origin claims (e.g., ``Made in USA,'' ``70% Made in

USA,'' ``Made in U.S. of U.S. and imported parts'') and asked a series

of questions about what they understood each claim to mean. The second

part of the Commission's study was termed an attitude survey (``1995

FTC Attitude Survey''). It presented subjects with a series of

scenarios in which the percentage of a product's cost that was U.S. in

origin varied; in addition, subjects were either told that the product

was assembled in the U.S., told that it was assembled abroad or not

told the site of assembly. Subjects were then asked whether or not they

agreed with a label stating that the product was ``Made in USA.''

181 In addition to the results of the new study commissioned

for this review, the results of a 1991 FTC study (``1991 FTC Copy

Test'') also were considered.182 This 1991 consumer

perception study asked consumers general questions about ``Made in

USA'' claims, as well as questions about the use of such claims in

specific advertisements.

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\181\ For example, a typical question in the 1995 FTC Attitude

Survey read:

This stereo is assembled in the United States using U.S. and

foreign parts. The foreign parts account for 10% of the total cost

of making the stereo. The U.S. parts and U.S. assembly together

account for 90% of the total cost. If this product had a label

stating that the product was ``Made in the USA,'' how much would you

agree or disagree with the label? Would you strongly agree, somewhat

agree, neither agree nor disagree, somewhat disagree, or strongly

disagree?

A respondent would then be presented with the same scenario,

except that 30% of the cost was foreign and 70% U.S., then with a

scenario in which U.S. and foreign costs each accounted for 50% of

the total costs, and so on.

\182\ Document No. B213001.

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In addition to the Commission's studies, at least six other

commenters provided consumer perception data on U.S. origin claims,

including: New Balance Athletic Shoe (New Balance), the International

Mass Retail Association (IMRA), the American Hand Tool Coalition

(American Hand Tool), Crafted With Pride in U.S.A. Council, Inc.

(Crafted with Pride), BGE Ltd. (BGE), and the National Consumers League

(NCL).183 The studies addressed a number of topics related

to U.S. origin claims and found a range of results. The most

significant findings are discussed below.

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

\183\ The NCL study consisted of mail-in survey of its

membership and did not purport to be a scientifically valid survey.

Nonetheless, it is included in this discussion for informational

purposes.

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

a. Importance of U.S. origin in purchasing decisions. All of the

studies looked in one way or another at how important a ``Made in USA''

designation was to consumers. Several of the studies found that many

consumers express a preference for U.S.-made goods. For example, when

respondents to the 1991 FTC Copy Test were asked to circle things in an

ad that were important to them, 52% of those shown a typewriter ad and

33% of those shown a bicycle ad circled the ``Made in USA'' logo.

Similarly, American Hand Tool survey participants considered a ``Made

in USA'' label to be a highly important factor when buying hand tools.

On average, this label was considered as important as price and more

important than brand name and reputation of store (but was seen as less

important than the warranty). Crafted With Pride submitted the results

of several studies, all of which indicated that consumers have a

significant preference for items made in the USA.184 For

example, in one test conducted in retail stores, sales of U.S.-made

apparel increased 24% when the items were affixed with hangtags

prominently identifying them as ``Made in USA.'' 185

Finally, 84% of respondents in the NCL study said they were more likely

to buy an item that was made in the USA than a foreign-made product,

assuming that price and other features of the product were identical.

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

\184\ Crafted With Pride, #35, at 3-7, Exhibits 1-7; #176, at 2-

3.

\185\ Id., #35, at 6, Exhibit 7.

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On the other hand, three other studies suggested that country of

origin is not as important to consumers as some other product features,

such as price, design, and style. When asked an open-ended question as

to what factors they considered in deciding which brand of athletic

shoes to buy, no respondents to the New Balance survey mentioned the

country of origin of the shoes' components. Country of origin was

ranked by respondents in that survey below comfort and fit, durability,

design/style, and price in factors they considered in their athletic

shoe purchasing decisions. Similarly, in the BGE survey, only 26% of

participants indicated that they would base their decision about

whether to buy a collectible plate on the country in which it was

manufactured. In contrast, 99% said the primary reason for buying such

a plate was because of the art on it. IMRA submitted poll data

suggesting that although consumers say they prefer buying products made

in the USA, this preference noticeably declines if an American-made

good is more expensive than a foreign-made good. IMRA's data also

indicated that a product's country of origin rated well below a

product's warranty, price, and other product features in importance to

purchasing decisions. In addition, the survey submitted by IMRA showed

that people care more about the country of origin for certain products,

such as cars, clothing, and electronics, than for other products, such

as tools, shoes and large appliances.

Consumer responses to the 1995 FTC Copy Test and 1995 FTC Attitude

Survey reflect a range of views about the importance to consumers of

purchasing products that are made in the USA. Participants in the Copy

Test were asked ``When you are considering buying a [product], how

important is it to you that the item be made in the USA?'' On a scale

of 0-10, 0 being not at all important and 10 being very important, 39%

of participants responded in the 8-10 range; 39% of participants

responded in the 3-7 range; 22% of participants responded in the 0-2

range. The importance participants placed on buying a product that was

produced in the U.S. did not vary among the copy test products (a

stereo, coffee maker or pen).

The results of the 1995 FTC Attitude Survey were similar, although

participants in the Attitude Survey rated the importance of buying a

pen that was ``Made in USA'' somewhat higher than the importance of

buying a stereo that was made in the USA. Just under 50% of

participants who were asked about pens rated the importance of buying a

pen that was ``Made in the USA'' between 8-10. Less than 20% put the

importance between 0-2. For participants who were asked about stereos,

approximately 35% rated the importance of buying a stereo that was

[[Page 25036]]

Made in the USA between 8-10, while just over 25% put the importance

between 0-2.

Several of the studies found that consumers associate ``Made in

USA'' claims with positive economic consequences for the United States,

such as more jobs for Americans. For example, in the New Balance study,

when respondents were asked ``What does Made in USA mean to you,'' 35%

of respondents stated that a ``Made in USA'' label implied jobs or work

for U.S. citizens. In the Commission's 1991 Copy Test, when respondents

were shown a card with ``Made in USA'' on it and asked what they think

of when they see this on a product, the largest number of respondents

(27%) mentioned that ``Made in USA'' means jobs or employment, gave

responses focused on keeping dollars in the United States, or gave

other answers relating to the U.S. economy. Similarly, in the American

Hand Tool study, among 443 respondents who said that a majority of

their hand tools are American made, the largest percentage (41%) stated

that they buy American products to support the U.S. economy and U.S.

labor.

On the other hand, Crafted With Pride concluded that people check

country of origin for quality reasons, not because of abstract

political or social concerns; most think U.S. companies make better

clothing, appliances, telephones. Like Crafted With Pride, IMRA

concluded that people who base their purchasing decisions on a ``Made

in USA'' label do so because such a label represents better quality

than foreign produced goods, not because of patriotic sentiment.

b. Consumer understanding of ``Made in USA'' i. General meaning.

Several studies indicate that when asked to define ``Made in USA,''

consumers do so in only the most general terms. Most commonly, when

asked the meaning of ``Made in USA,'' study participants stated that a

product was ``Made in the USA'' with no elaboration. For example, in

the New Balance study, when consumers were asked ``What does 'Made in

USA' mean to you,'' the highest percentage of respondents (40%) stated

some version of ``Made/Manufactured in US.'' Similarly, American Hand

Tool found that when respondents were asked what a ``Made in USA''

label would mean if they were considering buying a hand tool, the

largest percentage of respondents (46%) simply stated it would mean the

tool was ``Made in the U.S.''

The Commission found similar results. In the 1995 FTC Copy Test,

when respondents were asked what a ``Made in USA'' claim means in an

advertisement or label, 63.5% gave answers indicating the product was

made in the U.S. without further elaboration. Similarly, in the 1995

FTC Attitude Survey, 60.8% of respondents stated that a ``Made in the

USA'' label means ``Made in US.''

ii. How much is made in the United States. In looking at how much

of a product that is labeled ``Made in USA'' consumers believe is made

in the United States, the answer appears to depend in part on how the

question is asked. As noted above, when asked the general, open-ended

question what does ``Made in USA'' mean, most consumers simply answer

``Made in USA.'' In the 1995 FTC Copy Test, for example, when asked

what a ``Made in USA'' statement in an ad or label meant, only 5% of

respondents answered ``all made in US.''

Where studies, however, directly asked consumers how much of a

product marked ``Made in USA'' was made in the United States, or

presented them with scenarios that posited a level of U.S. content,

many respondents indicated that they view ``Made in USA'' claims as

representing that products possess a high amount of U.S. content. This

result, for example, was reflected in two of the Commission studies.

The 1995 FTC Attitude Survey found that the number of consumers who

were willing to accept a ``Made in USA'' label on a product decreased

significantly as the amount of production costs incurred abroad

increased. For example, while 52% of respondents agreed with a ``Made

in USA'' label when foreign production accounted for 30% of total

production costs, only 28% of respondents were willing to accept a

``Made in USA'' label when foreign production accounted for 50% of

total production costs.186 In the 1991 FTC Copy Test,

approximately 77% of consumers stated that ``Made in USA'' references

mean that all or almost all of a product was made in the

USA.187

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

\186\ These figures are for responses across all sites of

assembly, i.e., whether the respondent was told that the product was

assembled in the U.S., assembled in a foreign country, or not told

the site of assembly. More complete results of the 1995 Attitude

Survey appear in the chart below.

\187\ In response to a follow-up question, approximately 82% of

these respondents specified that this was both parts and labor.

Thus, a total of approximately 63% of the respondents to the 1991

FTC Copy Test stated that a ``Made in USA'' claim meant the product

was all or almost all made in the United States and that this meant

both parts and labor.

Percentage of Respondents Who Agreed and Disagreed with a ``Made in USA'' Label

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

Assembled in U.S. Country of assembly Assembled in foreign

-------------------------- unspecified country

Total cost ---------------------------------------------------

Agree Disagree Agree Disagree Agree Disagree

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

90% US/10% Foreign................ 75.0% 22.0% 63.9% 31.5% 54.6% 33.3%

70% US/30% Foreign................ 67.0% 31.0% 50.9% 43.5% 38.9% 50.0%

50% US/50% Foreign................ 36.0% 46.0% 28.7% 57.4% 18.5% 63.9%

30% US/70% Foreign................ 25.0% 68.0% 20.4% 72.2% 10.2% 83.3%

10% US/90% Foreign................ 20.0% 74.0% 19.4% 74.1% 10.2% 84.3%

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

Other studies found similar results. American Hand Tool asked

respondents what percentage of a hand tool they assumed was made in the

U.S. Fifty-three percent of the respondents stated 100%. An additional

27% gave responses between 50% and 99%. Similarly, in the NCL study,

consumers were asked ``When you see a product advertisement or label

stating ``Made in USA,'' what amount of U.S. parts (i.e., components)

do you assume is in the product?'' Forty-five percent of respondents

stated 100%; an additional 9% of the respondents stated a minimum

ranging between 90% and 100%. When respondents to this survey were

asked about the minimum amount of U.S. labor they assume is in the

product, 58% stated 100%, and an additional eight percent stated a

minimum between 90% and 100%.

iii. Importance of U.S. assembly. When participants in the 1995 FTC

Copy Test were asked whether a ``Made in USA'' statement in an ad or on

a package suggested or implied anything

[[Page 25037]]

about where the product was assembled, only 50% of the respondents

answered affirmatively. The responses of the participants in to the

1995 FTC Attitude Survey, however, suggest that the site of assembly

makes a significant difference to consumers in deciding whether a

product is ``Made in USA.'' Specifically, respondents in the 1995 FTC

Attitude Survey were considerably more willing to agree with a ``Made

in the USA'' label on products that were assembled in the United States

than on products assembled abroad, regardless of the overall percentage

of the product that was made in the United States. For example, even if

a foreign-assembled product contained U.S.-made parts that accounted

for 90% of the product's total cost, only 55% of respondents were

willing to agree with a ``Made in the USA'' label on the product. By

contrast, when respondents were asked about the same 90% U.S. content

product and told that it was assembled in the United States, 75% were

willing to agree with a ``Made in USA'' label on the product.

2. Conclusions

The Commission received considerable information concerning

consumer perception of U.S. origin claims and has found this

information useful in its consideration of this matter. Although there

are necessarily limitations on the inferences that can be drawn, the

Commission believes that the following conclusions are supported by the

evidence.

First, the studies cited by the commenters indicate that U.S.

origin claims are material to many consumers. A large number of

consumers expressed an interest in or preference for U.S.-made goods,

even if they did not always follow this interest through when actually

purchasing items. A consumer's purchasing decision is, of course, often

influenced by other factors, such as fit and price; it is not sensible

to expect consumers to buy shoes that do not fit or that cost more than

they can afford simply because those products are labeled ``Made in

USA.'' Nonetheless, all other things being equal, many consumers

express a preference for U.S.-made products. That U.S. origin claims

are material to consumers is reinforced by the considerable interest of

manufacturers in making these claims. Many of the comments received

also indicate that a ``Made in USA'' label is a valuable marketing

tool.

Second, the consumer perception data indicate that many consumers

may have only a general sense of what the phrase ``Made in USA'' means

rather than a highly refined view of how ``Made in USA'' should be

interpreted, i.e., whether a ``Made in USA'' claim should be evaluated

in terms of costs, processing, or in another manner. Several

commenters, both at the workshop and in post-workshop comments, opined

that consumers' failure to specifically mention anything about cost or

parts when asked generally what ``Made in USA'' means shows that these

consumers interpret a ``Made in USA'' claim as meaning only that the

product ``came into being'' in the United States. One commenter said,

for example:

[A]pproximately 65 percent of the [FTC] copy test respondents

either repeated the ``Made in USA'' phrase or responded with a

virtually identical phrase when queried about the meaning of ``Made

in USA.'' Since such consumers are likely to use the word `made'

according to its dictionary definition, the copy test results show

that consumers perceive a product as being created in this country

if the materials are either formed or modified, or the component

parts are put together in the United States. 188

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\188\ FIA, #177, at 2.

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