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§ 241.5

Misrepresenting composition, form, suitability, or quality in adver tising.

An industry member should not make any representation in an advertisement 1 which has the capacity and tendency or effect of deceiving purchasers or prospective purchasers as to the composition, appearance, form, suitability or quality of an industry product or of any ingredient thereof. More specifically:

(a) A product should not be described in advertising as "all meat" or "100 percent meat," or "all tuna," or "all chicken," or otherwise represented as being composed wholly of a named ingredient if it contains other ingredients such as the byproducts of meat, poultry, or fish. However, for the purpose of this provision, water sufficient for processing, required decharacterizing agents, and trace amounts of preservatives and condiments shall not be considered ingredients.

(b) The name or names of ingredients derived from animals, poultry or fish, such as "meat," "beef," "tuna," or "chicken and eggs" should not be used as a complete description of the composition of an industry product unless the product contains at least 95 percent by weight of the named ingredient or combination of such ingredients. If the product contains more than one ingredient derived from animals, poultry, or fish, the name of a preferred ingredient should not be given precedence or undue prominence so as to create the impression that the product contains a greater amount of that ingredient than it does in fact. For example, if a product contains 70 percent eggs and 25 percent chicken it should be described as "eggs and chicken."

(c) The names of ingredients derived from animals, poultry or fish or words or terms suggestive thereof, or representations that a product contains such ingredients, should not be used in advertising respecting an industry product unless the ingredients so named, repre

1 The word "advertising" or "advertisement" as used in this part includes any written or verbal statement, notice presentation, illustration, or depiction, other than labeling, which is directly or indirectly designed to effect the sale of any industry product, or to create an interest in the purchase of any such product, whether same appears in a newspaper, magazine, or other periodical, in a catalog, letter, or sales promotional literature, in a radio or television broadcast, or in any other media.

sented, or suggested are present in the product in substantial amounts and the name, word, term, or representation is accompanied by a clear and conspicuous disclosure of the nature of the other ingredients contained in the product. The disclosure contemplated by this provision does not necessitate a complete listing of ingredients but only such description as is necessary to remove any likelihood of deception as to the general nature and composition of the product. However, no ingredient should be given undue emphasis so as to create the impression that it is present in the product in a larger amount than is the fact. This provision is not intended to preclude the use of such names or terms as descriptive of the flavor of a product which has the flavor represented and is immediately followed by the word "flavor” (see § 241.7), or to affect the use in advertising of product names or statements of identity which conform to the provisions of § 241.4. The following are examples of appropriate disclosures under this paragraph:

(1) "A meaty mixture of vegetables, cereals, and other nutritional ingredients."

(2) "Contains cereals, vegetables, and meat."

(d) Such terms as "stew," "hash," or other human food terms should not be used to describe an industry product or an ingredient thereof which is not so constituted as to conform to Federal standards of identity established for such foods. However, the specified percentages of meat, poultry, or fish ingredients may properly be composed of the named ingredient or of a combination of that ingredient and the parts of poultry or fish, or the byproducts of animals, poultry, or fish from which the ingredient was derived. For example, a product described as "Meat Stew for Dogs" should contain not less than 25 percent meat and meat byproducts, or a product described as "Chicken Stew for Dogs" should contain not less than 25 percent chicken and chicken parts, or a product described as "Pet Stew for Dogs" should contain not less than 25 percent meat and meat byproducts, or poultry products, and a variety of vegetables and other nutritional ingredients.

(e) Representations that a product contains or is fortified with fresh eggs should not be made if the product in fact contains no fresh eggs or an inappreciable amount thereof, or only dried or powdered eggs or egg yolks or egg whites,

or only such eggs as may be found in the carcasses of poultry.

(f) Representations that an industry product contains whole fresh milk should not be made if the product in fact contains reconstituted milk, skimmed milk, buttermilk, or dry powdered whole or skimmed milk.

(g) Representations that a product or an ingredient thereof is "moist in its own juices" or otherwise that the moisture therein is the natural juices contained in the product or ingredients should not be made if water or other liquids have been added thereto.

(h) Vignettes and graphic and pictorial illustrations of an industry product or the contents, ingredients on immediate container thereof, which have the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers with respect to the appearance, substance, condition, or composition of the product or its ingredients should not be used. A pictorial or other depiction of a product which has the appearance of being composed entirely of meat or of other ingredients derived from animals, poultry or fish, but which in fact is not so composed, should be accompanied by a clear and conspicuous disclosure of the nature of the ingredients contained in the product.

(i) Terms such as "burger," "chunk," "patty," "cubes," "loaf," "croquettes," and others of similar import, should not be used to describe a product or an ingredient thereof which does not have substantially the shape or form so represented when it is sold to the retail purchaser. Terms denoting shape or form which also suggest ingredients derived from animals, poultry, or fish are subject to the provisions of this part relating to misrepresentation of content.

(j) The quality of an industry product from the nutritional standpoint is not necessarily dependent upon its meat content, or upon the amount or nature of other ingredients derived from animals, poultry or fish which it may contain. Accordingly, it is improper to represent that a dog or cat has a nutritional requirement for such an ingredient, or that solely because a particular industry product contains, for example, a specified percentage of meat it is nutritionally superior to products having a lesser quantity of meat, or to those which contain other and different ingredients. Such advertising is deceptive because it does not take into considera

tion the nutritional properties of various ingredients or combinations thereof used in the formulation and processing of industry products.

(k) Representations or claims by an industry member that a product is superior to other products from the standpoint of quality, composition, nutritional properties or method of manufacture should not be made unless the advertiser has established on the basis of accurate comparative analyses or scientifically valid tests that such is the fact. Comparatives such as "meatier," "higher meat protein," and "greater meat content" should not be used as descriptive of an industry product or an ingredient thereof without disclosing the basis of comparison, e.g., "meatier than our other products."

(1) It is deceptive to offer for sale or sell an industry product which is not suitable for use as a food for dogs or cats. As a prospective purchaser usually cannot ascertain by inspection whether an industry product will satisfy all of the nutritional requirements of a dog or cat, advertising respecting a product which is suitable only for particular purposes, e.g., as an intermittent or supplemental food, a special food for puppies, a protein supplement, or as a maintenance food for mature dogs, or is otherwise not a complete food, should not contain direct or implied representations which are misleading with respect to the purposes for which the product is suitable. To avoid misleading prospective purchasers in this respect it is generally necessary to disclose clearly and conspicuously the particular purposes for which the product is suitable or that the product is not a complete food. This disclosure is especially necessary where in the absence thereof purchasers would be led by the advertising to believe that the product is nutritionally complete.

(m) Advertising should not contain any representation with respect to the identity, composition, or suitability of any industry product or an ingredient thereof, which contradicts, negates or is otherwise inconsistent with any representation, statement, direction for use, or other information which appears in the labeling of such a product.

(n) In advertisements pertaining to more than one of its products an industry member should use only such terms as are properly applicable to all of the products so advertised, unless the advertisement specifically identifies the particular

products to which certain representations are applicable. For example, if "Y Company" has on the market an "all meat" product for dogs, an "all tuna”. products for cats, and two separate, complete ration-type foods for dogs and cats respectively, it should not in a single advertisement represent that Y products are complete foods, or that they are “all meat." [Guide 5]

§ 241.6 Misrepresentation of color in advertising.

An industry member should not misrepresent directly or indirectly, in advertising, the actual color of an industry product. More specifically, it should not represent that the color of a product is its natural color when such color has been established by artificial means; or that a product does not contain an artificial coloring ingredient unless this is true in fact; or that the color of a product is of any particular significance to a dog or to a cat. [Guide 6]

§ 241.7 Misrepresentation of flavor in

advertising.

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An industry member should not represent directly or indirectly, in advertising, labeling, brand or trade name, or otherwise:

(a) That an industry product, or a recommended feeding thereof, is or meets the requisites of a complete, perfect, scientific, or balanced ration for dogs or cats unless such product or feeding:

(1) Contains ingredients in quantities sufficient to satisfy the estimated nutrient requirements established by a recognized authority on animal nutrition, such as the Committee on Animal Nutrition of the National Research Council of the National Academy of Sciences; or

(2) Contains a combination of ingredients which, when fed to a normal ani

mal as the only source of nourishment, will provide satisfactorily for fertility of the male and female, gestation and lactation, normal growth from weaning to maturity without supplementary feeding and will maintain the normal weight of an adult animal whether working or at rest, and has had its capabilities in this regard demonstrated by adequate testing.

(b) That any listing of nutrients is equal to or exceeds the amounts recommended by a recognized authority on animal nutrition, such as the Committee on Animal Nutrition of the National Research Council of the National Academy of Sciences, unless such listing utilizes the same units of measure, and lists in equal or excess amounts all of the essential nutrients contained in the most recent nutrient list of that authority; or

(c) That a product or ingredient thereof contains vitamins, minerals, or other nutrients in excess of the actual content thereof, as for example, by comparing the vitamins, minerals, or other nutrients of a product or ingredient thereof with the nutrient content of a food deficient in such nutrients; or

(d) That any product or ingredient thereof provides "super protein richness," or a complete source of protein in that it contains the essential body building amino acids, inferably in the proper amount and proportion for proper nutrition, when such is not the fact. [Guide

8]

§ 241.9

Misrepresentation of medicinal and therapeutic benefits.

An industry member should not represent directly or indirectly in advertising, labeling, brand or trade name, or otherwise, that a product or ingredient thereof will:

(a) Prevent, cure, correct, tend to correct, eliminate, remove, or provide resistance to any disease, condition, disorder, infection, or parasite, or in any way improve the health or condition of any animal, when such is not the fact; or

(b) Provide any therapeutic benefit which it is capable of providing only in instances where the consuming animal's ordinary diet is deficient in elements supplied by the product or ingredient, unless due notice or qualification is made to that effect. [Guide 9]

§ 241.10 Human food representation.

An industry member should not misrepresent directly or indirectly, in advertising, labeling, brand or trade name or

otherwise, that a product is fit for human consumption or made under the same sanitary conditions as food for humans. [Guide 10]

§ 241.11 Misrepresentation of processing methods.

An industry member should not, in advertising, labeling or otherwise, misrepresent the methods used in the manufacture or processing of an industry product. More specifically: Representations that a product has been broiled, braised, baked, or otherwise cooked, preserved or processed in a specific manner should not be made unless such is the fact. As the word "canned" when applied to an industry product may constitute a representation as to the manner in which a product has been processed as well as to the nature of the container in which it is packaged, a product should not be described without qualification as "canned" unless it has been both thermally processed and packed in a can. [Guide 11]

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An industry member should not directly or indirectly in advertising, labeling, or otherwise:

(a) Engage in the defamation of its competitors by falsely imputing to them dishonorable conduct, inability to perform contracts, questionable credit standing, or by making other false representations about them; or

(b) Falsely disparage the quality, grade, origin, appearance, composition, suitability, nutritional properties, cost, value, type, consistency, form, color, flavor, method of manufacture, manner of preparation, or lack of novelty of its competitors' products. [Guide 12]

§ 241.13

Misrepresentation of the character and size of business, extent of testing, etc.

An industry member should not misrepresent directly or indirectly in company, brand or trade name, or in advertising, labeling, or otherwise:

(a) The length of time it has been in business; or

(b) The extent of its sales; or

(c) Its rank in the industry as a producer or distributor of a product or type of product; or

(d) That it is a manufacturer or packer of industry products; or

(e) That it owns or operates a laboratory, breeding or experimental kennel, or that its products have been tested in any particular manner or for any period of time or with any particular results; or (f) That a product, ingredient, or manufacturing process is new or exclusive; or

(g) Any other material aspect of its business or products. [Guide 13]

§ 241.14 Deceptive endorsements, testimonials, and awards.

An industry member should not deceptively represent directly or indirectly by endorsement, testimonial, award, advertising, labeling, brand or trade name, or otherwise:

(a) That a product or ingredient thereof has been prepared according to the formula, direction, or personal supervision of, or is prescribed by, or is the first choice of, or has been inspected, guaranteed, recognized, approved or used by; or meets or exceeds the specifications or standards of; or is otherwise endorsed by a particular individual or class of individuals, or by a governmental or nongovernmental agency, or by professionals such as veterinarians, chemists, physicists, or psychiatrists, or by organizations, breeders, kennels, sportsmen, hunt clubs, or animal hospitals; or

(b) That a product is the recipient of a bona fide merit award or seal of approval; or

(c) That a product or an ingredient thereof has been inspected by the U.S. Government or any agency thereof and that it has passed that inspection. [Guide 14]

§ 241.15 Bait advertising.

An industry member should not offer for sale any industry product when the offer is not a bona fide effort to sell the product so offered as advertised and at the advertised price.

NOTE: In determining whether there has been compliance with this section, consideration will be given to acts or practices indicating that the offer was not made in good faith for the purpose of selling the advertised product, but was made for the purpose of contacting prospective purchasers and selling them a product or products other than the product offered. Among acts or practices which will be considered in making that determination are the following:

(a) The creation, through the initial offer or advertisement, of a false impression of the product offered in any material respect;

(b) The refusal to show, demonstrate or sell the product offered in accordance with the terms of the offer;

(c) The disparagement by acts or words of the product offered or the disparagement of the guarantee, or in any other respect in connection with it;

(d) The showing, demonstrating, and in the event of sale, the delivery of a product which is unsuitable for the purpose represented or implied in the offer;

(e) The failure, in the event of sale of the product offered, to deliver such product to the buyer within a reasonable time thereafter;

(f) The failure to have available a quantity of the advertised product at the advertised price sufficient to meet reasonably anticipated demands.

It is not necessary that each act or practice set forth above be present in order to establish that a particular offer does not comply with this section.

NOTE: The Commission's Guides Against Bait Advertising furnish additional guidance respecting bait advertising. See 16 CFR Part 238 for the Guides Against Bait Advertising.

[Guide 15]

§ 241.16

Guarantees, warranties, etc.

(a) An industry member should not represent in advertising or otherwise that a product is guaranteed without clear and conspicuous disclosure of:

(1) The nature and extent of the guarantee; and

(2) Any material conditions or limitations in the guarantee which are imposed by the guarantor; and

(3) The manner in which the guarantor will perform thereunder; and

(4) The identity of the guarantor. (The necessary disclosure requires that any guarantee made by the dealer or vendor which is not backed up by the manufacturer must make it clear that the guarantee is offered by the dealer or vendor only.)

(b) A seller or manufacturer should not advertise or represent that a product is guaranteed when he cannot or does not promptly and scrupulously fulfill his obligations under the guarantee.

(c) A specific example of refusal to perform obligations under the guarantee would arise in connection with the use of the phrase "Satisfaction or your money back" if the guarantor does not promptly make a full refund of the purchase price upon request, irrespective of the reason for such a request.

(d) This section has application not only to "guarantees” but also to "warranties," to purported "guarantees" and

"warranties," and to any promise or representation in the nature of a "guarantee" or "warranty."

NOTE: The Commission's Guides Against Deceptive Advertising of Guarantees furnish additional guidance respecting guarantee representations. See 16 CFR Part 239 for Guides Against Deceptive Advertising of Guarantees. [Guide 16]

§ 241.17 Deceptive pricing.

An industry member should 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: The Commission's Guides Against Deceptive Pricing furnish additional guidance respecting price savings representations. See 16 CFR Part 233 for the Guides Against Deceptive Pricing.

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(a) A common form of bargain advertising used to promote the sale of photographic film processing service is the offer of a roll of film, represented as being free to consumers who purchase a particular advertiser's service.

(b) Film processors should avoid representing film as "free" when their quoted price for processing is not their regular price for such service, or, when the price charged for processing in connection with the "free" film representation is in excess of the price regularly charged by them for processing alone. A regular price is the price at which an article or service is openly and actively sold by the advertiser to the public on a regular basis for a reasonably substantial period of time in the recent and regular course of business. A price which (1) is not the advertiser's actual selling price, (2) is a price which was not used in the recent past but at some remote period in the past, or (3) is a price which has been

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