(b) Prohibited brokerage and commissions. It is an unfair trade practice for any member of the industry engaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, or merchandise, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact for or in behalf, or is subject to the direct or indirect control, of any party to such transaction other than the person by whom such compensation is so granted or paid.

(c) Prohibited advertising or promotional allowances, etc. It is an unfair trade practice for any member of the industry engaged in commerce to pay or contract for the payment of advertising or promotional allowances or any other thing of value to or for the benefit of a customer of such member in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products or commodities manufactured, sold, or offered for sale by such member, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities.

(d) Prohibited discriminatory services or facilities. It is an unfair trade practice for any member of the industry engaged in commerce to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishing of, any services or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all competing purchasers on proportionally equal terms.

(e) Inducing or receiving an illegal discrimination in price. It is an unfair trade practice for any member of the industry engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by the foregoing provisions of this section.

(1) Exemptions. The inhibitions of this section shall not apply to purchases of their supplies for their own use by schools, colleges, universities, public libraries, churches, hospitals, and charitable institutions not operated for profit.

NOTE: In complaint preceedings charging discrimination in price or services or facilities furnished and upon proof having been made of such discrimination, the burden of rebutting the prima facie case thus made by showing justification shall be upon the person charged; and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein shall prevent a seller rebutting the prima facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor-(See sec. 2 (b) Clayton Act.)

(a) "Industry Products" consist of sun glasses and sun glass lenses and other glasses and lenses which are used to provide protection for the eyes from sun glare, strong light, or other similar conditions, and frames and other parts for such glasses. The glasses and lenses covered are eye-protective, not eye-corrective, devices.

(b) "Industry Members" are persons, firms, corporations, and organizations engaged in the manufacture, assembly, sale, or distribution in commerce of industry products as defined above.

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

§ 202.1 Deception (general).

(a) It is an unfair trade practice for any member of the industry to sell, offer for sale, or distribute any industry product under any representation or circumstance having the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers of such product in any material respect.

(b) The inhibitions of this section are to be understood as applicable to, but not limited to, misleading claims and representations concerning:

(1) The protection afforded users of the product from eye injury resulting from exposure to sun glare, strong light, or other similar conditions;

(2) The efficacy of the product to improve, or to prevent material reduction of, vision on the part of users when worn under continuous or intermittent exposure to strong light;

(3) The kind, grade, quality, value, durability, composition, construction and finish of the product, or its immunity or resistance to tarnish.'

1 An industry product should not be unqualifiedly represented as being immune to breakage. When of such composition, construction, and design as to assure of nonbreakage under normal conditions of use for a substantial period of time it may properly be represented as being "breakresistant."

An industry product may properly be represented as being "tarnish resistant" when it will not tarnish for a substantial period of time under normal conditions of use.

(c) Other practices to be regarded as among those inhibited by the section are the following:

(1) Representing or implying that industry products are surplus goods of any of the armed services of the United States, or that such products were acquired, directly or indirectly, from the United States Government, or any branch or agency thereof, when such is not the fact;

(2) Representing or implying by use of such expressions as "Air Corps Type,” 'Air Force Type," "Aviation Type," "Type Worn by Air Force Pilots," or by use of any other terms or expressions of similar import, that industry products are of the same type, quality, and efficacy as those worn by aircraft pilots of the armed forces of the United States. when such is not the fact.

§ 202.2 Misuse of the terms “ground,” "polished," and "ground and polished."

In connection with the sale, offering for sale, or distribution of sun glasses or sun glass lenses, it is an unfair tradepractice to use the terms “ground," "polished," or "ground and polished," or any other words or terms of similar import, as descriptive of sun glass lenses unless the entire surfaces thereof have been ground with an abrasive and thereafter polished to eliminate form and surface imperfections and to produce an optical finish which is free from visible surface defects such as scratches, waves, and greyness: Provided, however, The terms "ground," "polished," or "ground and polished," or any other words or terms of similar import, may be used as descriptive of sun glass lenses produced from plate glass which has been so ground and polished, and thereafter thermally curved, bent, or dropped, if, in immediate conjunction with any of such representations, it is plainly disclosed that such plate glass was thermally curved after being ground and polished; as for example: "Made from plate glass ground and polished and thereafter thermally curved."

§ 202.3 Misrepresenting products

as

conforming to a standard or specification.

In the sale, offering for sale, or distribution of any industry product, it is an unfair trade practice:

(a) To falsely represent or imply that any such product conforms to the re-

quirements of any standard or specification, whether established or recognized by a department or unit of a city or state government, or of the Federal Government, or otherwise;

(b) To represent or imply that such product conforms to the requirements of any standard or specification without clearly disclosing the identity of the standard or specification to which reference is made. Such disclosure shall be by number, if any, of the standard or specification referred to, and the type of glass covered thereby, on all labels, invoices, sales literature, display cards, containers, and other advertising, except that when available space on labels is insufficient for the full statement in legible type, the identification may be made by number only;

(c) For any member of the industry to represent or imply that the product conforms to any standard or specification which is inapplicable or which has been rescinded, revised, superseded, or amended, and thereby mislead or deceive purchasers or prospective purchasers.

§ 202.4 Misuse of the word "Crookes." (a) It is an unfair trade practice, in the sale or distribution of sun glasses or sun glass lenses, to mark, stamp, brand, label, advertise, describe, or otherwise represent, such sun glasses or lenses as being "Crookes" when such is not true in fact; or to use the word "Crookes" or other words or representations in any manner as to import or imply that the lenses to which such marks, words, or representations are applied are "Crookes" lenses when such is not true in fact.

(b) Definition: For purposes of this part a "Crookes" lens is defined as a nearly neutral colored ultra-violet absorption glass which contains sufficient crude cerium and/or other rare earths to reduce the ultra-violet transmission at a thickness of 2.0 mm. to not more than 1 percent at 334 millimicrons, and also at this thickness to have prominent didymium absorption bands in the yellow region of the spectrum. For sun glasses the visual transmission shall be not more than 67 percent, but may vary within this limitation according to the desired shade. § 202.5

Deceptive price representations. Members of the industry shall not represent directly or indirectly in advertising or otherwise that an industry product

may be purchased for a specified price, or at a saving, or at a reduced price, when such is not the fact; or otherwise deceive purchasers or prospective purchasers with respect to the price of any product offered for sale; or furnish any means or instrumentality by which others engaged in the sale of industry products may make any such representation.

NOTE: On December 20, 1963, the Commission adopted Guides Against Deceptive Pricing which became effective on January 8, 1964, and which supersede the guides on this subject as adopted October 2, 1958. The 1964 guides are set forth as an appendix to these rules.

[29 F.R. 11125, July 31, 1964]

§ 202.6 Misrepresentation as to origin and disclosure of foreign origin.

(a) It is an unfair trade practice to misrepresent the place of manufacture or processing of industry products or their components.

(b) It is also an unfair trade practice to offer for sale, sell or distribute any industry product manufactured or processed in a foreign country, or any industry product containing a substantial or material part or parts manufactured or processed in a foreign country, without clear and adequate disclosure of such fact, when the failure to make such disclosure has the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers as to the origin of the product, or part or parts thereof, as the case may be.

Disclosure of foreign origin, as and when required under this paragraph, may be in the form of a stamping or marking on the product itself, or on a tag or label securely attached to the product. Such disclosure shall clearly identify the foreign country in which the product, or part or parts thereof, were manufactured or processed, and shall be of such conspicuousness as to be noticeable and readable on casual inspection, and of such permanence as to remain thereon until the consummation of consumer sale.

NOTE: 1: Paragraph (b) of this section is not to be construed as requiring disclosure as to foreign manufacture or processing when, by reason of further manufacturing or processing operations in this country, or merger with another part or other parts, the imported product or part does not retain the appearance and essential characteristics which is possessed at the time of its importation. In this connection it is to be understood that when lenses imported from a for

eign country are installed in frames of domestic or foreign manufacture, such lenses are not to be regarded as having lost their identity either in appearance or essential characteristics by reason of installation in the frames.

NOTE 2: Nothing in this section shall be construed as relieving any number of the industry or other party of the necessity of complying with the requirements of the customs laws or regulations, or other applicable provisions of law or regulation, relating to the marking of imported articles.

§ 202.7 Misuse of the term "certified,"

etc.

It is an unfair trade practice for an industry member to describe, identify, or refer to an industry product as "Certified," or to use respecting such product any other word or words of similar meaning or import, unless:

(a) The identity of the certifier and the specific matters or qualities certified are clearly disclosed in conjunction therewith; and

(b) The certifier has examined such product, has made certification, and is qualified to certify as to such matters and qualities; and

(c) There is available to the purchaser a certificate setting forth clearly and nondeceptively the name of the certifier and the matters and qualities certified. § 202.8 Misrepresentation as to gold

content.

(a) It is an unfair trade practice to sell or offer for sale any industry product under any trade or product name or designation or other representation having the capacity and tendency or effect of deceiving purchasers or prospective purchasers thereof as to the presence of gold or gold alloy in the product, or as to the quantity or fineness of gold alloy contained in the product, or as to the fineness, thickness, weight ratio, or manner of application of any gold or gold alloy plating, covering, or coating on any surface of any industry product or part thereof.

(b) The following practices are among those to be regarded as inhibited by paragraph (a) of this section:

(1) Use of the unqualified word "Gold," or any abbreviation thereof, as descriptive of any industry product, or part thereof, which is not composed throughout of fine (24 karat) gold.

(2) Use of the word "Gold," or any abbreviation thereof, as descriptive of

any industry product, or part thereof, which is composed throughout of an alloy of gold, unless a correct designation of the karat fineness of the alloy immediately precedes the word "Gold," or abbreviation thereof, and such fineness designation is of at least equal conspicuousness therewith.

(3) Use of the word "Gold," or any abbreviation thereof, as descriptive of any industry product, or part thereof, which is not composed throughout of gold or gold alloy, but is surface-plated or coated with gold alloy, unless the word "Gold," or abbreviation thereof, is so qualified as adequately and nondeceptively to disclose that the product or part is but surface-plated or coated with an alloy of gold; and, when such plating has been mechanically applied, unless such word "Gold," or abbreviation thereof, is immediately preceded by a correct designation of the karat fineness of the alloy and such fineness designation is of at least equal conspicuousness therewith.

NOTE: See acceptable forms of markings and descriptions for such products set out in paragraph (c) (2) of this section.

(4) Use of the terms "Gold Filled," "Rolled Gold Plate," "Rolled Gold Plated," "Gold Overlay," "Gold Plated," or "Gold Plate," as descriptive of an industry product or part thereof, unless such product or part contains a surfaceplating of gold alloy applied by a mechanical process which is of such thickness and extent of surface coverage that use of the term as descriptive of the product or part will not have the capacity and tendency of deceiving purchasers or prospective purchasers, and unless the term is immediately preceded by a correct designation of the karat fineness of the alloy and such designation is of at least equal conspicuousness as the term used.

NOTE: See acceptable forms of markings and descriptions for such products set out in paragraph (c) (2) of this section.

(5) Use of the term "Gold Electroplate," or "Gold Electroplated," as descriptive of any industry product or part thereof, unless such product or part is plated or coated with gold or a gold alloy and such plating or coating is of such karat fineness, thickness, and extent of surface coverage that the use of the term will not have the capacity and tendency

of deceiving purchasers or prospective purchasers.

NOTE: See acceptable forms of markings and descriptions for such products set out in paragraph (c)(3) of this section.

(6) Representing, directly or by implication, by use of any name, terminology, or otherwise, that an industry product is equal or superior to, or different than, a known and established type of industry product with reference to its gold content or method of manufacture, unless the representation is true in fact (namely, that it is equal or superior to or different than the established type in the respects represented or implied.)

NOTE: Requirements for use of the word "Gold," or any abbreviation thereof, as above set forth, are applicable to "Duragold," "Diragold," "Noblegold," "Goldine," or any words or terms of similar import.

(c) Markings and descriptions of industry products or parts thereof will be considered as meeting the requirements of this section when in conformity with the following:

(1) An industry product or part thereof composed throughout of an alloy of gold of not less than 10 karat fineness may be marked and described as "Gold" when such word "Gold," wherever appearing, is immediately preceded by a correct designation of the karat fineness of the alloy and such karat designation is of equal conspicuousness as the word "Gold" (as, for example, "14 Karat Gold;""14 K. Gold;" and "14 Kt. Gold"). Such a product may also be marked and described by a designation of the karat fineness of the gold alloy unaccompanied by the word "Gold" (as, for example, "14 Karat," "14 Kt.," and "14 K.").

NOTE: When the term "Gold," or any abbreviation thereof, is used as descriptive of any product or part of a product which is composed throughout of gold alloy but contains a concealed hollow center or interior, the term or its abbreviation shall also be immediately accompanied by a disclosure of the fact that the product or part contains a hollow center or interior (as, for example, "14 Karat Gold-Hollow Center" and "14 K. Gold Tubing," when of a gold alloy tubing of such a karat fineness), when the failure to make such disclosure has the capacity and tendency or effect of deceiving purchasers or prospective purchasers. Such products must not be marked or described as "solid" or as being solidly of gold or of a gold alloy. For example, though the composition of such a product is 14 karat gold alloy, it shall not be

described or marked as either "14 Kt. Solid Gold" or as "Solid 14 Kt. Gold."

(2) An industry product or part thereof on which there has been affixed on all significant surfaces, by soldering, brazing, welding, or other mechanical means, a plating of gold alloy of not less than 10 karat fineness which is of substantial thickness, may be marked or described as "Gold Filled," "Gold Plate," "Gold Plated," "Gold Overlay," "Rolled Gold Plate," or adequate abbreviations thereof, when such plating constitutes at least 1/20th of the weight of the metal in the entire article, and when the term is immediately preceded by a designation of the karat fineness of the plating which is of equal conspicuousness as the term used (as, for example, "14 Kt. Gold Filled," "14 Kt. G.F.," "14 Kt. Gold Plated," "14 Kt. G.P.," and "14 Kt. Gold Overlay"). When conforming to all such requirements except the specified minimum of 1/20th of the weight of the metal in the entire article, the terms "Gold Plate," "Gold Plated," "Rolled Gold Plate," and "Gold Overlay" may be used when the karat fineness designation is immediately preceded by a fraction which accurately discloses the portion of the weight of the metal in the entire article accounted for by the plating, and when such fraction is of equal conspicuousness as the term used (as, for example, "1/40 12 Kt. Rolled Gold Plate," and "1/40 12 Kt. R.G.P.").

(3) An industry product or part thereof, all significant surfaces on which there has been affixed by an electrolytic process a coating or plating of gold, or of a gold alloy of not less than 10 karat fineness, the minimum thickness throughout of which is equivalent to 7/1,000,000ths of an inch of fine gold, may be marked or described as "Gold Electroplate" or "Gold Electroplated." When the coating or plating meets the minimum fineness, but not the minimum thickness, above specified, the marking or description may be "Gold Flashed" or "Gold Washed," and when of the minimum fineness above specified and of a minimum thickness throughout which is equivalent to 100/1,000,000ths of an

As here used, the term "substantial thickness" is to be construed as requiring that all areas of the plating be of such thickness as to assure of a durable coverage of the base metal to which it has been affixed.