§ 199.103

Repudiation of contracts.

Lawful contracts are business obligations which should be performed in letter and in spirit. The repudiation of contracts by sellers on a rising market, or by buyers on a declining market, is condemned by the industry.

§ 199.104 Manner of disclosure of type of canvas material.

It is the recommendation of the industry that denomination of the type of canvas material of which a canvas cover is made be in accord with the nomenclature and definitions contained in Commercial Standard CS28-46 (Cotton Fabric Tents, Tarpaulins, and Covers) of the National Bureau of Standards.

(a) As used in this part the term "industry products" means and includes all pillows, cushions, comforters, sleeping bags, and similar products, which are wholly or partially filled with feathers or down.

(b) Members of the industry are the persons, firms, corporations and organizations engaged in the business of manufacturing, processing, distributing or marketing in commerce any such industry products.

NOTE: Nothing in this part shall be construed as relieving any member of the industry of the necessity of complying with the requirements of State laws or regulations or other laws or regulations applicable to the products of this industry.

It is an unfair trade practice to use, or cause or promote the use of, any trade promotional literature, advertising, matter, guarantee, warranty, mark, brand, label, trade name, picture, design or device, designation, or other type of oral or written representation, however disseminated or published, which has the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers:

(a) With respect to the type, kind, grade, quality, quantity, weight, size, color, origin, durability, processing, testing, construction, manufacture, distribution, or customary or regular price, of any industry product, or concerning any component, contents, or covering of such product; or

(b) With respect to the colorfastness, finish, thread count, weight, pattern, material, type of fiber or weave, or feather- or down-resistant qualities of the sewn, permanent, or removable cover or covering of any industry product; or

(c) Which in any other material respect has the capacity and tendency or effect of misleading or deceiving the purchasing or consuming public.

§ 200.2 Deceptive pictures or symbols.

It is an unfair trade practice, in connection with the offering for sale, sale, or distribution of industry products, to use as part of a label, advertisement, trade name, or other representation, any depiction of a waterfowl or other picture,

symbol, or design which, either alone or in conjunction with accompanying words, phrases, or other representations, has the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers into the belief that the product is composed (in whole or in part) of feathers or down when such is not the fact, or is composed (in whole or in part) of feathers or down from fowl of the type or color represented by such words, pictures, or other symbols, when such is not the fact. § 200.3 Identification and disclosure of kind and type of filling material in industry products.

(a) In the sale, offering for sale, or distribution of industry products, it is an unfair trade practice to misrepresent or deceptively conceal the identity of the kind or type of filling material contained in any of such products, or of the kinds or types, and proportions of each, when the filling material is a mixture of more than one kind or type. Such identification and disclosure shall be made by tag or label securely affixed to the outside covering of each product and in invoices and all advertising and trade promotional literature relating to the product; and when the filling material is a mixture of more than one kind or type, each kind and type shall either be listed in the order of its predominance by weight, or be listed with an accompanying disclosure of the fraction or percentage by weight of the entire mixture which it represents.

(b) Identification of the kind and type of feather and down stock by use of any of the terms listed and defined in this paragraph will be considered proper when in accord with the definition set forth for such term:

of

(1) Down. The undercoating waterfowl, consisting of clusters of the light, fluffy filaments growing from one quill point but without any quill shaft.

(2) Down fiber. The barbs of down plumes separated from the quill points. (3) Waterfowl feathers. Goose feathers, duck feathers, or any mixture of goose and duck feathers.

(4) Feathers (or natural feathers). Bird or fowl plumage having quill shafts and barbs and which has not been processed in any manner other than by washing, dusting, and sterilizing.

(5) Quill feathers (or quills). Wing feathers or tail feathers or any mixture of wing and tail feathers.

(6) Crushed feathers. Feathers which have been processed by a crushing or curling machine which has changed the original form of the feathers without removing the quill.

(7) Stripped feathers. The barbs of feathers stripped from the quill shaft but not separated into feather fiber.

(8) Feather fiber. The barbs of feathers which have been completely separated from the quill shaft and any aftershaft and which are in nowise joined or attached to each other.

(9) Chopped feathers. Feathers which have been subjected to a chopping or cutting process and as a result have been chopped or cut into pieces.

(10) Damaged feathers. Feathers, other than crushed, chopped, or stripped, which are broken, damaged by insects, or otherwise materially injured. (c) Tolerance: 1

1

(1) Subject to the restrictions and limitations of this paragraph, the filling material of an industry product may be represented as being of but one kind or type when 85 percent of the weight of all filling material contained in the product is of the represented kind or type; or may be represented as being of a mixture of two or more kinds or types with accompanying disclosure of a fraction or percentage of the weight of the entire mixture represented by each if the fraction or percentage shown is not at variance with the actual proportion of the weight of the entire mixture represented by each such kind or type by more than 15 percent of the stated fraction or percentage.

(2) Limitations and restrictions:

(1) When the filling material of an industry product is represented, directly or indirectly, as being wholly of down, any proportion within the tolerance percentage provided for in subparagraph (1) of this paragraph which is not down shall consist principally of down fiber and/or small, light, and fluffy waterfowl feathers, shall contain no quill feathers, crushed feathers, or chopped feathers, and shall not contain damaged feathers, quill pith, quill fragments, trash, or any matter foreign to feather and down stock in excess of 2 percent by weight of the filling material contained in the product or which in the aggregate exceeds 5 percent of such weight.

The tolerance provided for in this paragraph is to be understood as being an allowance for error and as not embracing any intentional adulteration.

(ii) When the filling material of an industry product is represented, directly or indirectly, as being wholly of waterfowl feathers, any proportion within the tolerance percentage provided for in subparagraph (1) of this paragraph which is not waterfowl feathers shall not contain non-waterfowl feathers in excess of 5 percent by weight of the filling material in the product, nor quill pith, quill fragments, trash, or any matter foreign to feather and down stock in excess of 2 percent by weight of the filling material in the product or which in the aggregate exceeds 5 percent of such weight; and, unless nondeceptively disclosed in the representation, not in excess of 5 percent by weight of the filling material of the product shall consist of waterfowl quill feathers, waterfowl damaged feathers, waterfowl crushed feathers, or waterfowl chopped feathers.

(iii) When the filling material of an industry product is represented, directly or indirectly, as being wholly of feathers (or natural feathers), any proportion within the tolerance percentage provided for in subparagraph (1) of this paragraph which is not natural feathers shall not contain quill pith, quill fragments, trash, or any matter foreign to feather and down stock in excess of 2 percent by weight of the filling material in the product or which in the aggregate exceeds 5 percent of such weight; and, unless nondeceptively disclosed in the representation, not in excess of 5 percent by weight of the filling material of the product shall consist of crushed feathers, chopped feathers, quill feathers, or damaged feathers.

(iv) When the filling material of an industry product is represented, directly or indirectly, as being wholly of a mixture of down and feathers, or of down and more than one kind or type of feathers, or of feathers of more than one kind or type, any proportion, or the aggregate of any proportions, of the filling material of the product at variance with the representation, but within the tolerance percentage provided for in subparagraph (1) of this paragraph, shall not contain quill pith, quill fragments, trash, or any matter foreign to feather and down stock in excess of 2 percent by weight of the filling material in the product or which in the aggregate exceeds 5 percent of such weight; and, unless nondeceptively disclosed in the representation, not in excess of 5 percent by

weight of the filling material of the product shall consist of crushed feathers, chopped feathers, quill feathers, or damaged feathers.

NOTE: It is the consensus of the industry that determination as to whether any representation is violative of the provisions of this section should be based on an average of the results of tests of at least two products of the same type when same are readily available for testing, and that a proper method of testing such product would be as follows:

Samples of approximately equal weight and size should be drawn from at least three different locations in the product. Such samples should then be thoroughly mixed so as to assure of substantially uniform distribution of each kind and type of component material. From such mixture a test sample of not less than 3 grams weight should be drawn. The kinds and types of materials in said test sample should then be identified and separated and each kind or type then separately weighed and the percentage by weight of each kind and type computed from such weights. The identification of the various kinds and types of feather and down stock in the test sample should be made by a competent feather and down analyst.

(d) Nothing in this section is to be construed as relieving industry members from complying with the requirements of § 200.5 when the filling material of any industry product, or any component thereof, is used or second-hand, or from complying with the requirements of $ 200.6 "Cleanliness of feathers, down, and other components."

§ 200.4 Disclosure as to covering materials.

It is an unfair trade practice to misrepresent or deceptively conceal the type or kind of fabric or other material used in covers and cases of industry products, or the fiber or material content of any inner, outer, permanent, or removable covers or cases.

NOTE: Products containing rayon, silk, or linen shall be identified as to their fiber and material content in labels, invoices, and advertisements, in accordance with the requirements of trade practice rules heretofore promulgated by the Commission for the Rayon Industry, Silk Industry, and Linen Industry.

Products containing, purporting to contain, or in any way represented as containing, wool, reprocessed wool, or reused wool, shall be labeled in accordance with the requirements of the Wool Products Labeling Act of 1939 and the rules and regulations issued thereunder (Part 300 of this chapter).

§ 200.5 Second-hand feathers, down, and other components.

To offer for sale, sell, or distribute any industry product containing any component which has previously been used in any product, or used for any purpose, without clearly disclosing that fact in describing, advertising, labeling, invoicing and selling such product, and in all representations concerning the product, is an unfair trade practice. It is likewise an unfair trade practice to misrepresent or deceptively conceal the type, kind, or amount of such components, or to use with reference to said products descriptive words, phrases, labels, or other representations which have the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers concerning the effect on said material of such prior use or concerning the type, extent, method, or effect of any reprocessing, renovation, or resterilization of such material.

§ 200.6 Cleanliness of feathers, down, and other components.

It is an unfair trade practice to sell or distribute for sale to the ultimate consumer, without full and nondeceptive disclosure concerning the unclean, unsanitary, and unsterilized nature of the contents, any industry product containing feathers, down, or other components which have not been sterilized and properly washed or otherwise properly cleaned, or containing used or secondhand feathers, down, or any other components which have not been re-sterilized and re-cleaned, such practice having the capacity and tendency or effect of causing purchasers or consumers to be misled or deceived by reason of concealment or nondisclosure of the condition of the feathers, down, or other contents of such product.

NOTE: Standard tests, such as the New York State Oxygen Test, should be used to determine whether feathers and down have been properly cleaned. Such a test may be made in the following manner:

Ten grams of feathers and down are transferred to a glass jar or similar container and 1 liter of distilled water at room temperature is added. The material is thoroughly wetted by shaking and placed in an incubator at 25° C. for one hour. It is then filtered through 19-cm. coarse filter paper, and 100 ml. of filtrate are pipetted into a porcelain casserole. The liquid is made just acid to litmus with 6 N sulfuric acid and 1 ml. of acid is added in excess. The solution is titrated in the cold with 0.1 N potassium permanganate by adding 2-drop portions and then stirring until a pink color persists for 60 seconds.

The number of milliliters of potassium permanganate used is noted, and calculated to number of grams of oxygen per 100,000 grams of sample (oxygen number). 1 ml. of 0.1 N KMnO, 0.8 mg. of oxygen-80, oxygen, number.

Material having an oxygen number above 20 shall be deemed to be not properly cleaned. § 200.7 Disclosure as to size.

(a) In connection with the offering for sale, sale, or distribution of industry products, it is an unfair trade practice to misrepresent or deceptively conceal the size of any product, or to advertise, mark, brand, stamp, tag, label, or otherwise represent or describe, any industry product in a manner having the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers as to the size or any dimension of such product.

(b) In the application of this section, the following standards and tolerances shall be observed to the end that confusion, misunderstanding, deception, and unfair competitive practices may be avoided and prevented.

(1) Representations concerning the size of a product shall set forth or indicate the finished size of the product (that is, the dimensions of the product as offered for sale) in a clear, definite, and unambiguous manner.

EXAMPLE: Either "Finished Size-21x27" or "Size 21x27" is a proper label for a product with a finished size 21 inches wide and 27 inches long. A size label stating only "21x 27" is also deemed a representation that such is the finished size.

(2) In the case of representations concerning the finished size of industry products, a tolerance on each dimension of one-fourth inch for pillows and one inch for comforters will be allowed.

EXAMPLE: A pillow labeled "Size 21x27” is within the tolerance if the measurement of its shortest end and side is not less than

20x264 and the measurement of its longest end and side is not more than 214x27.

(3) Truthful disclosure of the cut size of a product's cover before sewing and filling may be made in conjunction with, and with no greater conspicuousness than, any disclosure of the finished size of the product, when explanation is made of the meaning of such cut size, and when such disclosure is made in a clear, definite, and unambiguous manner that does not mislead or deceive the purchaser or prospective purchaser concerning the finished size of the product.

EXAMPLE: A finished product size label stating only "Cut Size-21 x 27" does not comply with the foregoing rule. A proper label could read: "Finished Size-20 x 26; Cut Size of Cover Before Sewing and Filling-21 x 27.” § 200.8 Guarantees, warranties, etc.

(a) It is an unfair trade practice to use or cause to be used any guarantee which is false, misleading, deceptive, or unfair to the purchasing or consuming public.

(b) The following types of guarantees are examples of those considered unfair trade practices and in violation of this section:

(1) Guarantees which are so used, or are of such form, text, or character, as to import, imply, or represent that the guarantee is broader than is in fact true, and guarantees which in themselves or in the manner of their use are otherwise false, misleading, or deceptive.

(2) Guarantees which purportedly extend for indefinite or unlimited periods of time, or for such long periods of years, as to have the capacity and tendency or effect of thereby misleading or deceiving purchasers or users into the belief that the product has or is definitely known to have a greater degree of serviceability or durability in actual use than is in fact true.

(3) Guarantees which have the capacity and tendency or effect of otherwise misrepresenting the serviceability, durability, or lasting qualities of the product, or of its feather and down content, or of its fabric covering or of any mothproofing or other special treatment or quality of such product.

(c) This section shall be applicable not only to guarantees, but also to warranties, to purported warranties and guarantees, and to any promise or representation in the nature of or purporting to be a guarantee or warranty.

§ 200.9 Fictitious price lists.

The publishing or circulating by any member of the industry of false or misleading price quotations, price lists, terms or conditions of sale, or reports as to production or sales, with the capacity and tendency or effect of misleading or deceiving purchasers, prospective purchasers, or the consuming public, or the advertising, sale, or offering for sale of industry products at prices purporting to be reduced from what are in fact fictitious prices, or at purported reductions in price when such purported reductions are in fact fictitious or are otherwise misleading or deceptive, is an unfair trade practice.

§ 200.10 Use of lottery schemes.

The offering or giving of prizes, premiums, or gifts in connection with the sale or distribution of industry products, or as an inducement thereto, by any scheme which involves a lottery or scheme of chance, and the sale or distribution of industry products by any method or plan which involves a lottery or scheme of chance, are unfair trade practices.

It is an unfair trade practice for any member of the industry to represent, directly or indirectly, through the use of any word or term in his corporate or trade name, in his advertising or otherwise, that he is a manufacturer of feather and down products, or that he is the owner or operator of a factory or producing company manufacturing them, or that he owns, maintains, or operates a research laboratory devoted to feather, down, pillow, comforter, or bedding research and development, when such is not the fact, or in any other manner to misrepresent the character, extent, volume, or type of his business. § 200.12 False invoicing.

Withholding from or inserting in invoices any statements or information by reason of which omission or insertion a false or misleading record is made, wholly or in part, of the transactions represented on the face of such invoices, with the purpose or effect of thereby misleading or deceiving purchasers, prospective purchasers, or the consuming public, is an unfair trade practice. [24 F.R. 4327, May 29, 1959]