83 FR 47161 - Patriot Puck; Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

Federal Register Volume 83, Issue 181 (September 18, 2018)

Page Range		47161-47166
FR Document		2018-20272

The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices. The attached Analysis to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order-- embodied in the consent agreement--that would settle these allegations.

Federal Register, Volume 83 Issue 181 (Tuesday, September 18, 2018)

[Federal Register Volume 83, Number 181 (Tuesday, September 18, 2018)]
[Notices]
[Pages 47161-47166]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2018-20272]

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FEDERAL TRADE COMMISSION

[File No. 182 3113]

Patriot Puck; Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: The consent agreement in this matter settles alleged
violations of federal law prohibiting unfair or deceptive acts or
practices. The attached Analysis to Aid Public Comment describes both
the allegations in the complaint and the terms of the consent order--
embodied in the consent agreement--that would settle these allegations.

DATES: Comments must be received on or before October 12, 2018.

ADDRESSES: Interested parties may file a comment online or on paper, by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Write: ``Patriot Puck'' on
your comment, and file your comment online at https://ftcpublic.commentworks.com/ftc/patriotpuckconsent by following the
instructions on the web-based form. If you prefer to file your comment
on paper, write ``Patriot Puck; File No. 1823113'' on your comment and
on the envelope, and mail your comment to the following address:
Federal Trade Commission, Office of the Secretary, 600 Pennsylvania
Avenue NW, Suite CC-5610 (Annex D), Washington, DC 20580; or deliver
your comment to: Federal Trade Commission, Office of the Secretary,
Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex
D), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Julia Solomon Ensor (202-326-2377) or
Crystal Ostrum (202-326-3405), Bureau of Consumer Protection, 600
Pennsylvania Avenue NW, Washington, DC 20580.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34,
notice is

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hereby given that the above-captioned consent agreement containing a
consent order to cease and desist, having been filed with and accepted,
subject to final approval, by the Commission, has been placed on the
public record for a period of thirty (30) days. The following Analysis
to Aid Public Comment describes the terms of the consent agreement, and
the allegations in the complaint. An electronic copy of the full text
of the consent agreement package can be obtained from the FTC Home Page
(for September 12, 2018), on the World Wide Web, at https://www.ftc.gov/news-events/commission-actions.
You can file a comment online or on paper. For the Commission to
consider your comment, we must receive it on or before October 12,
2018. Write ``Patriot Puck; File No. 1823113'' on your comment. Your
comment--including your name and your state--will be placed on the
public record of this proceeding, including, to the extent practicable,
on the public Commission website, at https://www.ftc.gov/policy/public-comments.
Postal mail addressed to the Commission is subject to delay due to
heightened security screening. As a result, we encourage you to submit
your comments online. To make sure that the Commission considers your
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/patriotpuckconsent by following the instructions on the web-based
form. If this Notice appears at http://www.regulations.gov/#!home, you
also may file a comment through that website.
If you prefer to file your comment on paper, write ``Patriot Puck;
File No. 1823113'' on your comment and on the envelope, and mail your
comment to the following address: Federal Trade Commission, Office of
the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex D),
Washington, DC 20580; or deliver your comment to the following address:
Federal Trade Commission, Office of the Secretary, Constitution Center,
400 7th Street SW, 5th Floor, Suite 5610 (Annex D), Washington, DC
20024. If possible, submit your paper comment to the Commission by
courier or overnight service.
Because your comment will be placed on the publicly accessible FTC
website at https://www.ftc.gov, you are solely responsible for making
sure that your comment does not include any sensitive or confidential
information. In particular, your comment should not include any
sensitive personal information, such as your or anyone else's Social
Security number; date of birth; driver's license number or other state
identification number, or foreign country equivalent; passport number;
financial account number; or credit or debit card number. You are also
solely responsible for making sure that your comment does not include
any sensitive health information, such as medical records or other
individually identifiable health information. In addition, your comment
should not include any ``trade secret or any commercial or financial
information which . . . is privileged or confidential''--as provided by
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2),
16 CFR 4.10(a)(2)--including in particular competitively sensitive
information such as costs, sales statistics, inventories, formulas,
patterns, devices, manufacturing processes, or customer names.
Comments containing material for which confidential treatment is
requested must be filed in paper form, must be clearly labeled
``Confidential,'' and must comply with FTC Rule 4.9(c). In particular,
the written request for confidential treatment that accompanies the
comment must include the factual and legal basis for the request, and
must identify the specific portions of the comment to be withheld from
the public record. See FTC Rule 4.9(c). Your comment will be kept
confidential only if the General Counsel grants your request in
accordance with the law and the public interest. Once your comment has
been posted on the public FTC website--as legally required by FTC Rule
4.9(b)--we cannot redact or remove your comment from the FTC website,
unless you submit a confidentiality request that meets the requirements
for such treatment under FTC Rule 4.9(c), and the General Counsel
grants that request.
Visit the FTC website at http://www.ftc.gov to read this Notice and
the news release describing it. The FTC Act and other laws that the
Commission administers permit the collection of public comments to
consider and use in this proceeding, as appropriate. The Commission
will consider all timely and responsive public comments that it
receives on or before October 12, 2018. For information on the
Commission's privacy policy, including routine uses permitted by the
Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

Analysis of Proposed Consent Order To Aid Public Comment

The Federal Trade Commission (``FTC'' or ``Commission'') has
accepted, subject to final approval, an agreement containing a consent
order from Underground Sports Inc., d/b/a Patriot Puck; Hockey
Underground Inc., d/b/a Patriot Puck; Ipuck Inc., d/b/a Patriot Puck;
IPuck Hockey Inc., d/b/a Patriot Puck; and George Statler III
(``Respondents'').
The proposed consent order has been placed on the public record for
thirty (30) days for receipt of comments by interested persons.
Comments received during this period will become part of the public
record. After thirty (30) days, the Commission will again review the
agreement and the comments received, and will decide whether it should
withdraw from the agreement or make final the agreement's proposed
order.
This matter involves Respondents' marketing, sale, and distribution
of hockey pucks with claims that the pucks are made in the United
States.
According to the FTC's complaint, Respondents represented that all
of their hockey pucks are all or virtually all made in the United
States. In fact, Respondents' hockey pucks are wholly imported from
China. Specifically, since January of 2016, Respondents have imported
74,411 kilograms of hockey pucks, which is the equivalent of more than
400,000 standard-weight pucks. Based on the foregoing, the complaint
alleges that Respondents engaged in deceptive acts or practices in
violation of Section 5(a) of the FTC Act.
The proposed consent order contains provisions designed to prevent
Respondents from engaging in similar acts and practices in the future.
Consistent with the FTC's Enforcement Policy Statement on U.S. Origin
Claims, Part I prohibits Respondents from making U.S.-origin claims for
their products unless either: (1) The final assembly or processing of
the product occurs in the United States, all significant processing
that goes into the product occurs in the United States, and all or
virtually all ingredients or components of the product are made and
sourced in the United States; (2) a clear and conspicuous qualification
appears immediately adjacent to the representation that accurately
conveys the extent to which the product contains foreign parts,
ingredients or components, and/or processing; or (3) for a claim that a
product is assembled in the United States, the product is last
substantially transformed in the United States, the product's principal
assembly takes place in the United States, and United States assembly
operations are substantial.
Part II prohibits Respondents from making any country-of-origin
claim about a product or service unless the claim is true, not
misleading, and

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Respondents have a reasonable basis substantiating the representation.
Parts III through VI are reporting and compliance provisions. Part
III requires Respondents to acknowledge receipt of the order, to
provide a copy of the order to certain current and future principals,
officers, directors, and employees, and to obtain an acknowledgement
from each such person that they have received a copy of the order. Part
IV requires each Respondent to file a compliance report within one year
after the order becomes final and to notify the Commission within 14
days of certain changes that would affect compliance with the order.
Part V requires Respondents to maintain certain records, including
records necessary to demonstrate compliance with the order. Part VI
requires Respondents to submit additional compliance reports when
requested by the Commission and to permit the Commission or its
representatives to interview respondent's personnel.
Finally, Part VII is a ``sunset'' provision, terminating the order
after twenty (20) years, with certain exceptions.
The purpose of this analysis is to aid public comment on the
proposed order. It is not intended to constitute an official
interpretation of the proposed order or to modify its terms in any way.

By direction of the Commission, Commissioner Chopra dissenting.
Donald S. Clark,
Secretary.

Concurring Statement of Commissioner Rebecca Kelly Slaughter, in Which
Chairman Joe Simons Joins

When companies falsely claim that their products are made in the
U.S.A., they take advantage of consumers who choose to spend their
dollars supporting domestic products and the companies who expend
resources in order to make the claim proudly and truthfully. Today, the
Commission is announcing three enforcement actions \1\ targeting
companies and an individual who we allege falsely claimed their
products were made in the U.S.A. in violation of Section 5 of the FTC
Act. In Patriot Puck, respondent George Statler III and his companies
marketed hockey pucks imported from China as ``Made in America'' and
``The only American Made Hockey Puck!'' The Nectar Sleep respondents
included the statement ``Designed and Assembled in the USA'' in product
descriptions for mattresses wholly imported from China. And in
Sandpiper/PiperGear, respondents marketed imported backpacks and
wallets on websites claiming ``Featuring American Made Products'' and
shipped imported wallets with cards labeled ``American Made.'' The
Commission's complaints allege that these claims were plainly false and
the respondents have all agreed to strong administrative consent
orders.
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\1\ To date, the Commission has initiated 25 enforcement actions
arising from misleading U.S.-origin claims, targeting entities that
engage in intentional deception or refuse to come into prompt
compliance. FTC staff also works extensively with companies to
achieve compliance in this area, issuing more than 130 closing
letters addressing potential U.S.-origin claims. These letters
highlight that where companies make errors or potentially deceptive
claims to consumers, Commission staff works with them to quickly
come into compliance. In addition to enforcement actions and
compliance counseling, the Commission's program to protect consumers
from deceptive U.S.-origin claims involves significant business
education efforts. In 1997, the Commission issued an Enforcement
Policy Statement on U.S. Origin Claims that explains the types of
U.S.-origin claims that can be made and the substantiation needed to
support them. Commission staff has also issued comprehensive
guidance, press releases and blogs in this area to promote
compliance.
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Each of the administrative consent orders prohibits the respondents
from making these types of claims in the future \2\ and requires the
respondents to engage in recordkeeping and reporting that will assist
the FTC in monitoring compliance.\3\ Any violation of these orders can
result in a civil penalty of over $40,000 per violation.\4\ There is
evidence that these potential penalties have served as powerful
deterrents: to date the FTC has only had cause to initiate one contempt
proceeding \5\ against the more than twenty prior respondents in cases
involving U.S.-origin claims.
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\2\ Specifically, the orders prohibit respondents from making
deceptive unqualified U.S.-origin claims about their products and
lay out the type of substantiation required to make truthful claims.
The orders also govern the manner and type of qualification needed
to make a lawful qualified claim regarding U.S.-origin. The orders
further prohibit respondents from making any country-of-origin claim
about a product or service unless the claim is true, not misleading,
and respondents have a reasonable basis substantiating the
representation.
\3\ Each of the orders requires the respondents to file a
compliance report within one year after the order becomes final and
to notify the Commission within 14 days of certain changes that
would affect compliance with the order. Respondents are also
required to maintain certain records, including records necessary to
demonstrate compliance with the order. The orders also require
respondents to submit additional compliance reports when requested
by the Commission and to permit the Commission or its
representatives to interview respondents' personnel. The orders
remain in effect for 20 years.
\4\ Outside of specific rules, the FTC does not have authority
to seek civil penalties for violations of Section 5 of the FTC Act.
The FTC does have authority to seek civil penalties for any
violations of its administrative orders. See 15 U.S.C. 45(l) and 16
CFR 1.98(d) (2018).
\5\ See https://www.ftc.gov/news-events/press-releases/2006/06/ftc-alleges-stanley-made-false-made-usa-claims-about-its-tools
(announcing settlement with Stanley Works that imposed a $205,000
civil penalty for violating prior order regarding U.S.-origin
claims).
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In this area, administrative consent orders securing permanent
injunctive relief buttressed by the threat of significant civil
penalties have been largely successful in keeping former violators on
the straight and narrow and have no doubt served as a warning to others
that false claims will be identified and pursued. Therefore, we are
voting in support of the relief set forth in the final and proposed
administrative orders announced today.
We write separately to highlight the possibility that the FTC can
further maximize its enforcement reach, in all areas, through strategic
use of additional remedies. For example, in the U.S.-origin claim
context, there may be cases in which consumers paid a clear premium for
a product marketed as ``Made in the U.S.A.'' or made their purchasing
decision in part based on perceived quality, safety, health or
environmental benefits tied to a U.S.-origin claim.\6\ In such
instances, additional remedies such as monetary relief or notice to
consumers may be warranted. Requiring law violators to provide notice
to consumers identifying the deceptive claim can help mitigate
individual consumer injury--an informed consumer would have the option
to seek a refund, or, at the very least, stop using the product.
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\6\ Of the three cases the FTC is announcing today, we note that
consideration of additional remedies such as notice could have been
of particular value in the Nectar Sleep matter, which involved U.S.-
origin claims about mattresses. The fact that purchasers of Nectar
Sleep mattresses can seek a refund for any reason for 365 days after
their original purchase, https://www.nectarsleep.com/p/returns/, and
that purchasers received mattresses with accurate country-of-origin
labels, contributed to our decision to vote in favor of the final
Nectar Sleep order.
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The Commission has already begun a broad review of whether we are
using every available remedy as effectively as possible to fairly and
efficiently pursue vigorous enforcement of our consumer protection and
competition laws. If we find that there are new or infrequently applied
remedies that we should be seeking more often, the Commission will act
accordingly--and, where appropriate, signal to the public how we intend
to approach enforcement. In our view, a thoughtful review and forward-
looking plan is a more effective and efficient use of Commission
resources than re-opening and re-litigating the cases before us
today.\7\
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\7\ It is worth noting that all of the cases announced today
began well before the current complement of Commissioners were
instated, and therefore before staff could reasonably have been
expected to anticipate our particular priorities and views on
enforcement. To renegotiate these settlements at this point, after
litigation strategy was developed and executed, would require
substantial investment of staff time and effort and diversion of
resources from other important cases. A forward-looking set of
remedy priorities will help staff develop litigation strategy in an
efficient way.

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[[Page 47164]]

Statement of Commissioner Rohit Chopra

Question Presented

Are no-money, no-fault settlements adequate to remedy serious
violations of the FTC's ``Made in USA'' standard?

Summary

Sellers gain a competitive advantage when they falsely
market a product as Made in USA, especially when this claim is closely
tied to the development of the product's brand.
Third-party analysis suggests that Americans are often
willing to pay significantly more for American-made goods compared to
those made in China. Several of the matters under consideration by the
Commission involve Made-in-USA fraud relating to products made in
China.
The Commission should modify its approach to resolving
serious Made-in-USA fraud by seeking more tailored remedies that could
include restitution, disgorgement, notice, and admissions of
wrongdoing, based on the facts and circumstances of each matter.

Analysis and Discussion

The Power of Branding and Made in USA
While brand identity has historically been a major focus in markets
for luxury goods, today it plays a key role in all segments of our
economy. As advanced manufacturing and global supply chains challenge
firms to find new ways to lower operating costs, consumer goods
industries (including everything from apparel to packaged goods) have
focused intensely on building and cultivating their brands as a way to
drive up margins through price and volume enhancements.
Branding is distinct from marketing and advertising. A successful
brand is one that creates a clear identity that goes beyond specific
product attributes. A brand identity connects with a consumer's values,
aspirations, and sense of self.
A Made-in-USA claim can serve as a key element of a product's brand
that communicates quality, durability, authenticity, and safety, among
other attributes. Not only can it be a signal about specific product
attributes but it can also contribute to the development of a brand
identity that connotes a set of values, such as fair labor practices,
to consumers.
Made-in-USA branding can also be used to fraudulently conceal
countries of origin that may cause concerns for consumers. For example,
in recent years, regulators have investigated serious health and safety
problems with pet food \1\ and drywall \2\ imported from China, and the
OECD estimates that China is the source of the vast majority of
counterfeit goods imported to the U.S.\3\ Against this backdrop,
slapping a ``Made-in-USA'' label on a good made abroad can be its own
form of counterfeiting, replacing an unpopular attribute with one
connoting quality, safety, and authenticity.
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\1\ Food & Drug Admin., Melanine Pet Food Recall of 2007 (May
2007), https://www.fda.gov/animalveterinary/safetyhealth/recallswithdrawals/ucm129575.htm.
\2\ Fed. Trade Comm'n, Tests for Defective Drywall (Dec. 2009),
https://www.consumer.ftc.gov/articles/0124-tests-defective-drywall.
\3\ Global trade in fake goods worth nearly half a trillion
dollars a year, Org. for Econ. Co-Operation and Dev. (Apr. 18,
2016), http://www.oecd.org/industry/global-trade-in-fake-goods-worth-nearly-half-a-trillion-dollars-a-year.htm.
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In many cases, Americans are actually willing to pay a premium for
goods that are made in our country, especially compared to those made
in China. A 2012 survey by the Boston Consulting Group shows that more
than 80% of Americans express a willingness to pay more for made-in-USA
products,\4\ which is consistent with other surveys.\5\
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\4\ Made in America, Again: Understanding the value of 'Made in
the USA', The Boston Consulting Group (Nov. 2012) [Hereinafter Made
in America, Again].
\5\ See, e.g., Made in America: Most Americans love the idea of
buying a U.S.-made product instead of an import. But sometimes it's
hard to tell what's real and what's not, Consumer Reports (May 21,
2015), https://www.consumerreports.org/cro/magazine/2015/05/made-in-america/index.htm [hereinafter Made in America] (reporting on a
national survey finding that 60%+ of Americans would pay a 10%
premium for Made-in-USA goods); Price of patriotism: How much extra
are you willing to pay for a product that's made in America?,
Reuters (July 18, 2017), http://fingfx.thomsonreuters.com/gfx/rngs/USA-BUYAMERICAN-POLL/01005017035/index.html (reporting on a national
survey finding that 60%+ of Americans would pay a premium of 5% or
more). Of course, surveys reveal only Americans' stated willingness
to pay a premium, not their actual buying behavior. But assuming
Americans will pay no premium runs contrary to the available
evidence, and firms' aggressive Made-in-USA branding shows they
clearly see it as advantageous.
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Importantly, however, price premium does not always accurately
capture the harm caused by Made-in-USA fraud. Especially in markets for
commodity goods where consumers may be particularly price-sensitive,
firms may make false claims to distinguish their brand or conceal
unpopular countries of origin.
Whatever its purpose, cheating distorts markets in fundamental
ways. It rips off Americans who prefer buying domestic goods. It also
punishes firms that may bear higher costs to produce goods here, yet
must compete on price or branding with firms that cheat. Finally,
widespread deception sows doubt \6\ about the veracity of Made-in-USA
claims, which may reduce the claim's value and discourage domestic
manufacturing.
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\6\ See Made in America, supra note 5 (reporting on a national
survey finding that 23% of Americans lack trust in ``Made in
America'' labels).
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Backpacks, Hockey Pucks, and Mattresses
Today, the Commission is voting on three cases involving Made-in-
USA fraud.\7\ The conduct of each of these companies was brazen and
deceitful. In my view, each respondent firm harmed both consumers and
honest competitors.
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\7\ Claiming falsely that a product is Made in USA violates
Section 5 of the FTC Act. Although the FTC brought a Made-in-USA
case as early as 1940, Congress amended the FTC Act in 1994 to state
explicitly that Made-in-USA labeling must be consistent with FTC
decisions and orders. See 15 U.S.C. 45a.
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In the Sandpiper and Patriot Puck matters, the evidence suggests
that the Made-in-USA claim was a critical component of the companies'
brand identities. In the Nectar Sleep matter, the false Made-in-USA
claim may have been asserted to convey health or safety benefits.
Sandpiper/PiperGear USA: Sandpiper/PiperGear USA (``Sandpiper'')
built its brand of military-themed backpacks and gear on patriotism. As
detailed in the FTC's complaint, the company boasted in its promotional
materials about its ``US manufacturing,'' inserted ``American Made''
labels into products, and included the hashtag ``#madeinusa'' alongside
social media posts.\8\ The company sold thousands of backpacks on
American military bases overseas.
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\8\ Compl. at ]] 6-7.
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In reality, Sandpiper imported the vast majority \9\ of its
products from China or Mexico, a fact the firm actively sought to hide
through its aggressive Made-in-USA branding.
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\9\ According to the Complaint, more than 95% of Sandpiper's
products are imported as finished goods, while approximately 80% of
PiperGear's products are either imported as finished goods or
contain significant imported components. Id. at ] 7.
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Patriot Puck: Hockey pucks typically are manufactured to meet
certain weight, thickness, and diameter specifications. These are
commodity goods. Purchasers largely see competing pucks that boast
similar specifications, so brand positioning can be especially salient.

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Patriot Puck positioned its brand as the all-American alternative
to imported pucks. The company literally wrapped its pucks in the flag,
embossing each one with an image of an American flag. To drive home the
point, the firm claimed its pucks were ``Proudly Made in the USA,''
``MADE IN AMERICA,'' ``100% Made in the USA!,'' and ``100% American
Made!'' The firm even claimed it made ``The Only American Made Hockey
Puck!'' \10\
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\10\ Compl. at ] 9.
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In reality, Patriot Puck imported all of its pucks from China.\11\
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\11\ The Commission has wisely named George Statler III, who
operated the company, in its Complaint.
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That Patriot Puck priced its pucks similarly to other firms
illustrates why sticker price premium alone is a poor proxy for the
harm caused by Made-in-USA fraud, especially in markets for commodity
goods. Hockey is closely associated with international competition, and
Patriot Puck's claim to offer the ``only'' puck made in America was a
clear effort to create a brand identity that would distinguish its
pucks from the competition. Moreover, by pricing its pucks similarly to
its competitors, Patriot Puck led consumers to believe they were
getting a great deal on American-made hockey pucks, when in fact they
were overpaying for pucks made in China.\12\
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\12\ Surveys show that Americans will pay a premium for U.S.-
made sporting goods relative to those made in China, meaning they
effectively discount goods made in China. Made in America, Again at
1. And Americans may be particularly averse to buying patriotic-
themed goods made in China. See, e.g., Matt Brooks, US Olympic
uniforms spark fury in Congress, Wash. Post (July 13, 2012), https://www.washingtonpost.com/blogs/2012-heavy-medal-london/post/us-olympic-uniforms-spark-fury-in-congress/2012/07/13/gJQABvJmhW_blog.html?utm_term=.3d96e391f1dd.
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Nectar Sleep: Nectar Sleep is a direct-to-consumer online mattress
firm founded by Silicon Valley entrepreneurs. According to a CNBC
profile of the company, Nectar competes with more than 200 firms to
capture a slice of the $15 billion mattress market.
Nectar mattresses are made in China, which may be a negative
attribute for consumers who have health or safety concerns about
Chinese-made mattresses.\13\ Perhaps for this reason, the company
falsely represented to consumers that its mattresses were assembled in
the U.S.
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\13\ Such concerns may be tied to recent recalls of Chinese-made
mattresses and bedding, and may be partially reflected in the
premium Americans are willing to pay for U.S.-made furniture over
furniture made in China. See Made in America, Again at 6. In fact,
numerous consumer reviews specifically focus on comparing U.S.-made
mattresses.
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Nectar's conduct had clear consequences. Competitors who actually
made mattresses domestically were undercut, and consumers looking for
U.S.-made mattresses--possibly for health or safety reasons--got ripped
off. Further, Nectar may continue to profit from the lingering
misperception that its mattresses are made in the U.S.
Addressing Made-in-USA Fraud Going Forward
Most FTC resolutions of Made-in-USA violations have resulted in
voluntary compliance measures \14\ or cease-and-desist orders. Indeed,
none of the three settlements approved today includes monetary relief,
notice to consumers, or any admission of wrongdoing.
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\14\ Of course, when the violation is unintentional or technical
in nature, less formal actions can be helpful, especially if the
misstatement is quickly corrected. My comments are limited to
matters where the violation was egregious.
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Going forward, in cases involving egregious and undisputed Made-in-
USA fraud, I believe there should be a strong presumption against
simple cease-and-desist orders. Instead, the Commission should consider
remedies tailored to the individual circumstances of the fraud,
including redress and notice for consumers, disgorgement of ill-gotten
gains, opt-in return programs, or admissions of wrongdoing.
Some general principles can inform our approach to tailoring
remedies. For firms that built their core brand identity on a lie, full
redress or the opportunity for opt-in refunds may be appropriate, given
the centrality of the false claim and its widespread dissemination.\15\
When refunds are difficult to administer or the firm lacks ability to
pay, the Commission should at least seek notification to consumers or
corrective advertising \16\--especially in markets where country of
origin bears on health or safety. Finally, if firms' misrepresentations
are undisputed and clear, the Commission should strongly consider
seeking admissions--a form of accountability that is explicitly
contemplated by our rules of practice.\17\
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\15\ Particularly for misbranded products, the FTC could likely
show that a firm's Made-in-USA misrepresentations were widely
disseminated, that they were of the kind usually relied on by
reasonable persons, and that consumers purchased the product, thus
making gross sales an appropriate starting point for calculating
restitution. See FTC v. Kuykendall, 371 F.3d 745, 764 (10th Cir.
2004) (holding, in a contempt action, that after the Commission
establishes a presumption of reliance, ``the district court may use
the Defendants' gross receipts as a starting point''). Importantly,
if there was deception in the sale, defendants generally do not
receive credit for the value of the product sold. See FTC v. Figgie
Int'l, Inc., 994 F.2d 595, 606-07 (9th Cir. 1993) (``The fraud in
the selling, not the value of the thing sold, is what entitles
consumers'' to full redress.).
\16\ Corrective advertising can be important to preventing firms
from continuing to profit from deception. As explained by then-
Chairman Pitofsky after a corrective advertising order was upheld by
the D.C. Circuit, ``It is important for advertisers to know that it
is not enough just to discontinue a deceptive ad, and that they can
be held responsible for the lingering misimpressions created by
deceptive advertising.'' See Press Release, Fed. Trade Comm'n,
Appeals Court Upholds FTC Ruling; Doan's Must Include Corrective
Message in Future Advertising and Labeling (Aug. 21, 2000), https://www.ftc.gov/news-events/press-releases/2000/08/appeals-court-upholds-ftc-ruling-doans-must-include-corrective.
\17\ See 16 CFR 2.32.
---------------------------------------------------------------------------

Admissions may have particular value in cases involving Made-in-USA
fraud. In these cases, clear and undisputed facts may give the agency a
strong basis to demand an admission from a firm. And if that firm lacks
funds or records for consumer redress or disgorgement, admissions can
be a powerful tool to give consumers, competitors, and counterparties
tools to remedy harm, even when we cannot.\18\ Moreover, because the
Commission is generally limited to seeking equitable rather than
punitive remedies for first-time offenses, seeking admissions is among
the most effective ways we can deter lawbreaking and change the cost-
benefit calculus of deception.
---------------------------------------------------------------------------

\18\ For example, a factual admission may have a preclusive
effect in a Lanham Act claim by a competitor.
---------------------------------------------------------------------------

I hope that the Commission will reexamine its approach to tackling
Made-in-USA fraud. I believe we should seek more tailored remedies that
vindicate the important goals of the program and send the message that
Made-in-USA fraud will not be tolerated.

Conclusion

Nectar Sleep, Sandpiper, and Patriot Puck clearly violated the law,
allowing them to enrich themselves and harm their customers and
competitors. Especially given widespread interest in buying American
products, we should do more to protect the authenticity of Made-in-USA
claims. I am concerned that no-money, no-fault settlements send an
ambiguous message about our commitment to protecting consumers and
domestic manufacturers from Made-in-USA fraud.
Going forward, I hope the Commission can better protect against
harms to competition and consumers by seeking monetary relief, notice,
admissions, and other tailored remedies. Every firm needs to understand
that products labeled ``Made in USA'' should be made in the USA, and
that

[[Page 47166]]

fake branding will come with real consequences.

[FR Doc. 2018-20272 Filed 9-17-18; 8:45 am]
BILLING CODE 6750-01-P

Federal Register / Vol. 83, No. 181 / Tuesday, September 18, 2018 / Notices 47161

EARLY TERMINATIONS GRANTED JULY 1, 2018 THROUGH JULY 31, 2018—Continued
20181571 ...... G Canyon Value Realization Fund, L.P.; MGM Resorts International; Canyon Value Realization Fund, L.P.
20181572 ...... G The CVRF Trust; MGM Resorts International; The CVRF Trust.
20181573 ...... G The CBEF Master Trust; MGM Resorts International; The CBEF Master Trust.
20181616 ...... G Fortive Corporation; Warburg Pincus Private Equity X, L.P.; Fortive Corporation.

07/26/2018

20181370 ...... G Cohu, Inc.; Xcerra Corp.; Cohu, Inc.
20181583 ...... G PayPal Holdings, Inc.; Primus Capital Fund VII, L.P.; PayPal Holdings, Inc.
20181604 ...... G Ribbon Communications Inc.; Edgewater Networks, Inc.; Ribbon Communications Inc.
20181637 ...... G Goldman Sachs Renewable Power LLC; South Jersey Industries, Inc.; Goldman Sachs Renewable Power LLC.
20181638 ...... G PGGM Cooperatie U.A.; Electricite de France S.A.; PGGM Cooperatie U.A.

07/27/2018

20181632 ...... G Accor S.A.; Sam Nazarian; Accor S.A.
20181636 ...... G The Williams Companies, Inc.; TPG Growth III DE AIV II, L.P.; The Williams Companies, Inc.
20181654 ...... G KKR Americas Fund XII, L.P.; AppLovin Corporation; KKR Americas Fund XII, L.P.
20181656 ...... G Partners Group Access 967 L.P.; FPCI Astorg V; Partners Group Access 967 L.P.
20181658 ...... G Andritz AG; Xerium Technologies, Inc.; Andritz AG.
20181660 ...... G AIS Investment, LLC; Affinion Group Holdings, Inc.; AIS Investment, LLC.
20181663 ...... G Intertape Polymer Group Inc.; Piper Ridge Trust; Intertape Polymer Group Inc.
20181666 ...... G Green Equity Investors Side VII, L.P.; Letterone Investment Holdings S.A.; Green Equity Investors Side VII, L.P.
20181667 ...... G Mann Familienbeteiligungsgesellschaft mbH_Co. KG; Tri-Dim Filter Corporation; Mann Familienbeteiligungsgesellschaft
mbH_Co. KG.

07/30/2018

20181595 ...... G Green Plains Inc.; Marilyn and James Hebenstreit; Green Plains Inc.
20181662 ...... G Shanghai Fosun Pharmaceutical (Group) Co., Ltd.; Butterfly Network, Inc.; Shanghai Fosun Pharmaceutical (Group) Co.,
Ltd.
20181668 ...... G Synnex Corporation; Convergys Corporation; Synnex Corporation.
20181669 ...... G RoundTable Healthcare Partners IV, L.P.; Bovie Medical Corporation; RoundTable Healthcare Partners IV, L.P.
20181672 ...... G Spectrum Equity VII, L.P.; Lucid Software Inc.; Spectrum Equity VII, L.P.
20181673 ...... G The Goldman Sachs Group, Inc.; MDC Partners Inc.; The Goldman Sachs Group, Inc.
20181676 ...... G Insight Venture Partners IX, L.P.; ezCater, Inc.; Insight Venture Partners IX, L.P.
20181677 ...... G Crestview Partners III, L.P.; Advanced Marketing & Processing, Inc.; Crestview Partners III, L.P.
20181680 ...... G AI Global Investments & Cy S.C.A.; General Electric Company; AI Global Investments & Cy S.C.A.
20181681 ...... G Omnicom Group; Credera Holdings; Omnicom Group.

07/31/2018

20180590 ...... G Grifols, S.A.; The Biotest Divestiture Trust; Grifols, S.A.
20181457 ...... G Myriad Genetics, Inc.; Counsyl, Inc.; Myriad Genetics, Inc.
20181646 ...... G Alphabet Inc.; Warburg Pincus Private Equity X, L.P.; Alphabet Inc.
20181683 ...... G NuVision Federal Credit Union; Denali Federal Credit Union; NuVision Federal Credit Union.

FOR FURTHER INFORMATION CONTACT: SUMMARY: The consent agreement in this you prefer to file your comment on
Theresa Kingsberry, Program Support matter settles alleged violations of paper, write ‘‘Patriot Puck; File No.
Specialist, Federal Trade Commission federal law prohibiting unfair or 1823113’’ on your comment and on the
Premerger Notification Office, Bureau of deceptive acts or practices. The attached envelope, and mail your comment to the
Competition, Room CC–5301, Analysis to Aid Public Comment following address: Federal Trade
Washington, DC 20024, (202) 326–3100. describes both the allegations in the Commission, Office of the Secretary,
By direction of the Commission. complaint and the terms of the consent 600 Pennsylvania Avenue NW, Suite
order—embodied in the consent CC–5610 (Annex D), Washington, DC
Donald S. Clark,
agreement—that would settle these 20580; or deliver your comment to:
Secretary.
allegations. Federal Trade Commission, Office of the
[FR Doc. 2018–20275 Filed 9–17–18; 8:45 am] Secretary, Constitution Center, 400 7th
BILLING CODE 6750–01–P DATES: Comments must be received on Street SW, 5th Floor, Suite 5610 (Annex
or before October 12, 2018. D), Washington, DC 20024.
ADDRESSES: Interested parties may file a FOR FURTHER INFORMATION CONTACT: Julia
FEDERAL TRADE COMMISSION
comment online or on paper, by Solomon Ensor (202–326–2377) or
following the instructions in the Crystal Ostrum (202–326–3405), Bureau
daltland on DSKBBV9HB2PROD with NOTICES

[File No. 182 3113] of Consumer Protection, 600
Request for Comment part of the
SUPPLEMENTARY INFORMATION section Pennsylvania Avenue NW, Washington,
Patriot Puck; Analysis To Aid Public
below. Write: ‘‘Patriot Puck’’ on your DC 20580.
Comment
comment, and file your comment online SUPPLEMENTARY INFORMATION: Pursuant
AGENCY: Federal Trade Commission. at https://ftcpublic.commentworks.com/ to Section 6(f) of the Federal Trade
ftc/patriotpuckconsent by following the Commission Act, 15 U.S.C. 46(f), and
ACTION: Proposed consent agreement.
instructions on the web-based form. If FTC Rule 2.34, 16 CFR 2.34, notice is

VerDate Sep<11>2014 19:14 Sep 17, 2018 Jkt 244001 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 E:\FR\FM\18SEN1.SGM 18SEN1

Federal Register / Vol. 83, No. 181 / Tuesday, September 18, 2018 / Notices 47163

Respondents have a reasonable basis companies and an individual who we against the more than twenty prior
substantiating the representation. allege falsely claimed their products respondents in cases involving U.S.-
Parts III through VI are reporting and were made in the U.S.A. in violation of origin claims.
compliance provisions. Part III requires Section 5 of the FTC Act. In Patriot In this area, administrative consent
Respondents to acknowledge receipt of Puck, respondent George Statler III and orders securing permanent injunctive
the order, to provide a copy of the order his companies marketed hockey pucks relief buttressed by the threat of
to certain current and future principals, imported from China as ‘‘Made in significant civil penalties have been
officers, directors, and employees, and America’’ and ‘‘The only American largely successful in keeping former
to obtain an acknowledgement from Made Hockey Puck!’’ The Nectar Sleep violators on the straight and narrow and
each such person that they have respondents included the statement have no doubt served as a warning to
received a copy of the order. Part IV ‘‘Designed and Assembled in the USA’’ others that false claims will be
requires each Respondent to file a in product descriptions for mattresses identified and pursued. Therefore, we
compliance report within one year after wholly imported from China. And in are voting in support of the relief set
the order becomes final and to notify the Sandpiper/PiperGear, respondents forth in the final and proposed
Commission within 14 days of certain marketed imported backpacks and administrative orders announced today.
changes that would affect compliance wallets on websites claiming ‘‘Featuring We write separately to highlight the
with the order. Part V requires American Made Products’’ and shipped possibility that the FTC can further
Respondents to maintain certain imported wallets with cards labeled maximize its enforcement reach, in all
records, including records necessary to ‘‘American Made.’’ The Commission’s areas, through strategic use of additional
demonstrate compliance with the order. complaints allege that these claims were remedies. For example, in the U.S.-
Part VI requires Respondents to submit plainly false and the respondents have origin claim context, there may be cases
additional compliance reports when all agreed to strong administrative in which consumers paid a clear
requested by the Commission and to consent orders. premium for a product marketed as
permit the Commission or its Each of the administrative consent ‘‘Made in the U.S.A.’’ or made their
representatives to interview orders prohibits the respondents from purchasing decision in part based on
respondent’s personnel. making these types of claims in the perceived quality, safety, health or
Finally, Part VII is a ‘‘sunset’’ future 2 and requires the respondents to environmental benefits tied to a U.S.-
provision, terminating the order after engage in recordkeeping and reporting origin claim.6 In such instances,
twenty (20) years, with certain that will assist the FTC in monitoring additional remedies such as monetary
exceptions. compliance.3 Any violation of these relief or notice to consumers may be
The purpose of this analysis is to aid orders can result in a civil penalty of warranted. Requiring law violators to
public comment on the proposed order. over $40,000 per violation.4 There is provide notice to consumers identifying
It is not intended to constitute an evidence that these potential penalties the deceptive claim can help mitigate
official interpretation of the proposed have served as powerful deterrents: to individual consumer injury—an
order or to modify its terms in any way. date the FTC has only had cause to informed consumer would have the
initiate one contempt proceeding 5 option to seek a refund, or, at the very
By direction of the Commission,
Commissioner Chopra dissenting.
least, stop using the product.
them. Commission staff has also issued The Commission has already begun a
Donald S. Clark, comprehensive guidance, press releases and blogs broad review of whether we are using
Secretary. in this area to promote compliance. every available remedy as effectively as
2 Specifically, the orders prohibit respondents
Concurring Statement of Commissioner from making deceptive unqualified U.S.-origin
possible to fairly and efficiently pursue
Rebecca Kelly Slaughter, in Which claims about their products and lay out the type of vigorous enforcement of our consumer
Chairman Joe Simons Joins substantiation required to make truthful claims. The protection and competition laws. If we
orders also govern the manner and type of find that there are new or infrequently
When companies falsely claim that qualification needed to make a lawful qualified
claim regarding U.S.-origin. The orders further applied remedies that we should be
their products are made in the U.S.A.,
prohibit respondents from making any country-of- seeking more often, the Commission
they take advantage of consumers who origin claim about a product or service unless the will act accordingly—and, where
choose to spend their dollars supporting claim is true, not misleading, and respondents have appropriate, signal to the public how we
domestic products and the companies a reasonable basis substantiating the representation.
intend to approach enforcement. In our
who expend resources in order to make 3 Each of the orders requires the respondents to

file a compliance report within one year after the view, a thoughtful review and forward-
the claim proudly and truthfully. Today,
order becomes final and to notify the Commission looking plan is a more effective and
the Commission is announcing three within 14 days of certain changes that would affect efficient use of Commission resources
enforcement actions 1 targeting compliance with the order. Respondents are also
required to maintain certain records, including
than re-opening and re-litigating the
1 To date, the Commission has initiated 25 records necessary to demonstrate compliance with cases before us today.7
enforcement actions arising from misleading U.S.- the order. The orders also require respondents to
origin claims, targeting entities that engage in submit additional compliance reports when 6 Of the three cases the FTC is announcing today,

intentional deception or refuse to come into prompt requested by the Commission and to permit the we note that consideration of additional remedies
compliance. FTC staff also works extensively with Commission or its representatives to interview such as notice could have been of particular value
companies to achieve compliance in this area, respondents’ personnel. The orders remain in effect in the Nectar Sleep matter, which involved U.S.-
issuing more than 130 closing letters addressing for 20 years. origin claims about mattresses. The fact that
4 Outside of specific rules, the FTC does not have purchasers of Nectar Sleep mattresses can seek a
potential U.S.-origin claims. These letters highlight
that where companies make errors or potentially authority to seek civil penalties for violations of refund for any reason for 365 days after their
deceptive claims to consumers, Commission staff Section 5 of the FTC Act. The FTC does have original purchase, https://www.nectarsleep.com/p/
daltland on DSKBBV9HB2PROD with NOTICES

works with them to quickly come into compliance. authority to seek civil penalties for any violations returns/, and that purchasers received mattresses
In addition to enforcement actions and compliance of its administrative orders. See 15 U.S.C. 45(l) and with accurate country-of-origin labels, contributed
counseling, the Commission’s program to protect 16 CFR 1.98(d) (2018). to our decision to vote in favor of the final Nectar
consumers from deceptive U.S.-origin claims 5 See https://www.ftc.gov/news-events/press- Sleep order.
involves significant business education efforts. In releases/2006/06/ftc-alleges-stanley-made-false- 7 It is worth noting that all of the cases announced

1997, the Commission issued an Enforcement made-usa-claims-about-its-tools (announcing today began well before the current complement of
Policy Statement on U.S. Origin Claims that settlement with Stanley Works that imposed a Commissioners were instated, and therefore before
explains the types of U.S.-origin claims that can be $205,000 civil penalty for violating prior order staff could reasonably have been expected to
made and the substantiation needed to support regarding U.S.-origin claims). Continued

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47166 Federal Register / Vol. 83, No. 181 / Tuesday, September 18, 2018 / Notices

fake branding will come with real Hart-Scott-Rodino Antitrust indicated—of the waiting period
consequences. Improvements Act of 1976, requires provided by law and the premerger
[FR Doc. 2018–20272 Filed 9–17–18; 8:45 am] persons contemplating certain mergers notification rules. The listing for each
BILLING CODE 6750–01–P or acquisitions to give the Federal Trade transaction includes the transaction
Commission and the Assistant Attorney number and the parties to the
General advance notice and to wait transaction. The grants were made by
FEDERAL TRADE COMMISSION designated periods before the Federal Trade Commission and the
consummation of such plans. Section Assistant Attorney General for the
Granting of Requests for Early 7A(b)(2) of the Act permits the agencies, Antitrust Division of the Department of
Termination of the Waiting Period in individual cases, to terminate this
Justice. Neither agency intends to take
Under the Premerger Notification waiting period prior to its expiration
any action with respect to these
Rules and requires that notice of this action be
published in the Federal Register. proposed acquisitions during the
Section 7A of the Clayton Act, 15 The following transactions were applicable waiting period.
U.S.C. 18a, as added by Title II of the granted early termination—on the dates

EARLY TERMINATIONS GRANTED AUGUST 1, 2018 THRU AUGUST 31, 2018

08/02/2018

20181399 ........ G Tyson Family 2009 Trust; Thomas N. Bagwell; Tyson Family 2009 Trust.

08/03/2018

20181417 ........ G UnitedHealth Group Incorporated; PH Holdings, L.L.C.; UnitedHealth Group Incorporated.
20181626 ........ G Churchill Downs Incorporated; Eldorado Resorts, Inc.; Churchill Downs Incorporated.
20181653 ........ G Oakland County Credit Union; Vibe Credit Union; Oakland County Credit Union.
20181689 ........ G Atos SE; Syntel, Inc.; Atos SE.
20181697 ........ G The Timken Company; Clyde Blowers Capital Fund III LP; The Timken Company.
20181698 ........ G The Interpublic Group of Companies, Inc.; Acxiom Corporation; The Interpublic Group of Companies, Inc.
20181700 ........ G PSP Public Credit I Inc.; Permira V L.P. 2; PSP Public Credit I Inc.
20181702 ........ G Salesforce.com, Inc.; Datorama Inc.; Salesforce.com, Inc.
20181703 ........ G Ashtead Group plc; Matthew Lange and Karen Lange; Ashtead Group plc.
20181707 ........ G KKR Americas Fund XII, L.P.; Shamrock RB Co-Invest, LLC; KKR Americas Fund XII, L.P.
20181709 ........ G Francisco Partners V, L.P.; Permira V L.P.2; Francisco Partners V, L.P.
20181716 ........ G Kao Corporation; Gryphon Partners 3.5, L.P.; Kao Corporation.
20181718 ........ G Cambrex Corporation; SKCP III Angel AIV L.P.; Cambrex Corporation.
20181721 ........ G Asahi Kasei Corporation; Clearlake Capital Partners III, L.P.; Asahi Kasei Corporation.

08/06/2018

20181671 ........ G CACI International Inc.; General Dynamics Corporation; CACI International Inc.
20181711 ........ G The Veritas Capital Fund V, L.P.; Sharon B. Martin and Sydney F. Martin; The Veritas Capital Fund V, L.P.

08/07/2018

20181726 ........ G Michael S. Dell; Independence Contract Drilling, Inc.; Michael S. Dell.
20181727 ........ G Independence Contract Drilling, Inc.; Michael S. Dell; Independence Contract Drilling, Inc.

08/08/2018

20181701 ........ G Future plc; ABS Capital Partners VI, L.P.; Future plc.

08/10/2018

20181644 ........ G Alphabet Inc.; Neutron Holdings, Inc.; Alphabet Inc.
20181661 ........ G Perceptive Life Sciences Master Fund, Ltd.; Paul B. Manning; Perceptive Life Sciences Master Fund, Ltd.
20181722 ........ G CVC Capital Partners VII (A) L.P.; FIMEI S.p.A.; CVC Capital Partners VII (A) L.P.
20181734 ........ G EQT VIII (No. 1) SCSp; Apax VIII–B L.P.; EQT VIII (No. 1) SCSp.
20181743 ........ G GSO CSF III Holdco LP; Differential Brands Group Inc.; GSO CSF III Holdco LP.
20181744 ........ G GSO Capital Opportunities Fund III LP; Differential Brands Group Inc.; GSO Capital Opportunities Fund III LP.
20181745 ........ G Differential Brands Group Inc.; Global Brands Group Holding Limited; Differential Brands Group Inc.
20181746 ........ G Welsh, Carson, Anderson & Stowe XII, L.P.; NEW Asurion Corporation; Welsh, Carson, Anderson & Stowe XII, L.P.
20181759 ........ G PGGM Cooperatie U.A.; SUEZ S.A.; PGGM Cooperatie U.A.
20181760 ........ G The Procter & Gamble Company; Lilli Gordon; The Procter & Gamble Company.
20181762 ........ G New Jersey Resources Corporation; Riverstone Global Energy and Power Fund V (FT), L.P.; New Jersey Resources
Corporation.
daltland on DSKBBV9HB2PROD with NOTICES

20181764 ........ G Accel Growth Fund II L.P.; Freshworks Inc.; Accel Growth Fund II L.P.
20181768 ........ G Pfizer Inc.; AT Impf GmbH; Pfizer Inc.
20181785 ........ G Providence Equity Partners VIII L.P.; NEW Asurion Corporation; Providence Equity Partners VIII L.P.
20181786 ........ G Providence Equity Partners VIII–A L.P.; NEW Asurion Corporation; Providence Equity Partners VIII–A L.P.
20181787 ........ G PEP VIII Antares Co-Investment L.P.; NEW Asurion Corporation; PEP VIII Antares Co-Investment L.P.
20181803 ........ G Odyssey Investment Partners Fund V, LP; AEA Investors Small Business Fund II LP; Odyssey Investment Partners Fund
V, LP.

VerDate Sep<11>2014 19:14 Sep 17, 2018 Jkt 244001 PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 E:\FR\FM\18SEN1.SGM 18SEN1

Document Created: 2018-09-18 01:18:51
Document Modified: 2018-09-18 01:18:51

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Proposed consent agreement.
Dates		Comments must be received on or before October 12, 2018.
Contact		Julia Solomon Ensor (202-326-2377) or Crystal Ostrum (202-326-3405), Bureau of Consumer Protection, 600 Pennsylvania Avenue NW, Washington, DC 20580.
FR Citation		83 FR 47161