(a) Aerosol spray products designed for frosting cocktail glasses contain Fluorocarbon 12 (Dichlorodifluoromethane) which if inhaled in a concentrated amount may cause injury or death. Marketers, in the labeling of such products, have failed to provide a clear and conspicuous warning to the purchaser of the harmful effects of inhaling the product.

(b) The Commission concludes therefore that the failure to disclose that serious harm or death may result from inhaling quick-freeze aerosol spray has the capacity and tendency to mislead and deceive purchasers and prospective purchasers. The Commission further concludes that such practice is violative of section 5 of the Federal Trade Commission Act, and that the public interest in preventing this practice is specific and substantial.

The Commission hereby promulgates, as a Trade Regulation Rule, its conclusion and determination that in connection with the sale or offering for sale in commerce, as "commerce" is defined in the Federal Trade Commission Act, of quick-freeze aerosol spray products containing Fluorocarbon 12 (Dichlorodifluoromethane) designed for the frosting of beverage glasses it is an unfair or deceptive act or practice to fail to provide a clear and conspicuous warning on the labels of such products, that the contents thereof should not be inhaled in concentrated form and that injury or death may result from such inhalation. Examples of proper warning statements include:

(1) "WARNING: Use only as directed-inhalation of the concentrated vapors of this product is harmful and may cause death."

(2) "WARNING: Use only as directed-misuse of this product by inhaling its concentrated vapors is harmful and may cause death."

PART 418-DECEPTIVE ADVERTISING AND LABELING AS TO LENGTH OF EXTENSION LADDERS

STATEMENT OF BASIS AND PURPOSE

Sec.

The purpose of the rule is to inform all members of the industry and other interested or affected parties of the Commission's position with respect to the practice in question and to aid the Commission in the prevention of practices violative of section 5 of the Federal Trade Commission Act on an equitable and industrywide basis.

§ 418.3 The practice involved.

The record in this proceeding shows that marketers of extension ladders represent the sizes or lengths of their products in terms of the total length of the sections thereof, e.g., a "20-foot" or "20foot size" extension ladder consists of two 10-foot sections. With few exceptions, no other representation as to size is made in marking, labeling or advertising. It is also shown that in fully extending an extension ladder for use there must be an overlapping of the sections thereof for strength and safety purposes. As a result, footage is lost in such overlapping. Consequently, the maximum working or useful length of an extension ladder is invariably less than the total length of the component sections.

has been codified by numerous standards and safety codes employed by government and industrial users.

(b) Some marketers also argue that consumers are informed through labels, catalogs, and point-of-sale material, that overlapping is necessary in positioning an extension ladder for use. Not all members of the industry utilize such informative material in connection with the sale of their products. Frequently such information, when provided, is in small print or otherwise so inconspicuous as to be ineffective in informing purchasers of the actual safe useful length.

§ 418.5 Deceptive character of the practice.

(a) Due to rising costs in home care and improvements, the number of do-ityourself consumers has increased sharply. These users need extension ladders in cleaning gutters, painting, cleaning and for other household maintenance or repair purposes. Although the practice of representing extension ladder lengths in terms of the total of the lengths of the sections thereof has been followed for a substantial period of time and may be understood by tradesmen and industrial and governmental purchasers, there is no showing in this proceeding that this method of representing extension ladder lengths or sizes has acquired a secondary meaning among other consumers of such products. To the contrary, the Commission believes that this method of representing sizes is not understood by the average consumer. The Commission concludes that the present industry practice of representing extension ladder sizes or lengths tends to mislead the general consuming public into the erroneous belief that such represented sizes or lengths are the maximum working or useful lengths of the products so described.

(b) Although it appears that some industry members provide overlapping figures, it is shown that such disclosures are usually inadequate or so inconspicuous as to be of no value in curing the inherent deceptive tendency present when the primary emphasis in size or length representations is on the total length of the component sections.

(c) On the basis of the entire record and the Commission's accumulated experience with size or length representations the Commission concludes that the practice of representing the lengths of extension ladders solely in terms of the

total length of the component sections thereof is deceptive and tends to divert business from competitors who conspicuously disclose the working or usable length of their products. The Commission also concludes that such practice is violative of section 5 of the Federal Trade Commission Act and that the public interest in preventing this practice is specific and substantial.

(d) The Commission further concludes that the deception resulting from the use of unqualified size or length representations in terms of the total length of the component sections of an extension ladder would be removed and the public interest fully protected by a statement clearly and conspicuously showing the basis of such length calculation when accompanied by a clear and conspicuous disclosure of the maximum working or useful length of the ladder so described.

THE RULE

§ 418.6 The rule.

Accordingly, for the purpose of preventing such unlawful practice, the Commission hereby promulgates, as a Trade Regulation Rule, its conclusion and determination that in connection with the sale of extension ladders in commerce, as "commerce" is defined in the Federal Trade Commission Act, it is an unfair method of competition and an unfair or deceptive act or practice to represent, directly or by implication, the size or length of any such product in terms of the total length of the component sections thereof, in advertising, labeling marking or otherwise, unless

(a) Such size or length representation is accompanied by the words "total length of sections" or words or terms of similar import clearly indicating the basis of the representation; and

(b) Such size or length representation is accompanied by a statement, in close connection and conjunction therewith, clearly and conspicuously showing the maximum length of such product when fully extended for use (i.e., excluding footage lost in overlapping), and by an explanation of the basis for such representation.

Examples of proper length representations when the product consists of two ten foot sections are

"maximum working length 17', total length of sections 20' "

or

"17' extension ladder".

PART 419-GAMES OF CHANCE IN THE FOOD RETAILING AND GASOLINE INDUSTRIES

§ 419.1 The Rule.

The Commission, on the basis of the findings made by it in this proceeding, as set forth in the accompanying Statement of Basis and Purpose, hereby promulgates as a Trade Regulation Rule its determination that in connection with the use of games of chance in the food retailing and gasoline industries, it constitutes an unfair and deceptive act or practice for users, promoters, or manufacturers of such games to:

(a) Engage in advertising or other promotions which misrepresent by any means, directly or indirectly, participants' chances of winning any prize.

(b) Engage in any advertising, including newspaper and broadcast media advertising, or other promotions such as store signs, window streamers, banners, or display materials, or issue any game piece if such game piece refers, on the exposed portion thereof, in any manner to prizes or their number or availability, which fail to disclose clearly and conspicuously:

(1) The exact number of prizes in each category or denomination to be made available during the game program and the odds of winning each such prize made available, this disclosure, for prizes in the amount or value of $25 or more, to be revised each week a game extends beyond 30 days to reflect the number of such unredeemed prizes still available and the odds existing of winning each such unredeemed prize; and

(2) The geographic area covered by the game (e.g., "Nation-wide," "Washington, D.C. metropolitan area,” etc.); and

(3) The total number of retail outlets participating in the game; and

(4) The scheduled termination date of the game.

(c) Fail to mix, distribute, and disperse all game pieces totally and solely on a random basis throughout the game program and throughout the geographic area covered by the game, and fail to maintain such records as are necessary to demonstrate to the Commission that total randomness was used in such mixing, distribution, and dispersal.

(d) Promote, sell, or use any game which is capable of or susceptible to being solved or "broken" so that winning game pieces or prizes are predetermined or preidentified by such methods rather

than by random distribution to the participating public.

(e) Fail to furnish the Commission at the conclusion of each game, and fail to post clearly and conspicuously in each retail outlet which used the game:

(1) A complete list of the names and addresses of the winners of each prize and the amount or value of the prizes won by each;

(2) The total number of game pieces distributed;

(3) The total number of prizes in each category or denomination which were made available; and

(4) The total number of prizes in each category or denomination which were awarded.

(f) Promote or use any new game

without a break in time between the new game and any game previously employed in the same establishment equivalent to the duration of the game previously employed.

NOTE: Under this paragraph (f) a retail establishment which has promoted a game for 60 days may not employ a new game without a 60-day interval between the two.

(g) Terminate any game, regardless of the scheduled termination date, prior to the distribution of all game pieces to the participating public.

(h) Add additional winning game pieces during the course of a game, or in any manner replenish the prize structure of a game in progress.

(38 Stat. 717, as amended; 15 U.S.C. 41-58) [34 F.R. 13302, Aug. 16, 1969]

As used in this part, unless the context otherwise specifically requires:

(a) The term "Act" means the "Fair Packaging and Labeling Act" (Public Law 89-755, approved Nov. 3, 1966; 80 Stat. 1296 et seq.; 15 U.S.C. 1451 et seq.).

(b) The term "regulation" or "regulations" means regulations promulgated by the Commission pursuant to sections 4, 5, and 6 of the Act (15 U.S.C. 1453, 1454, 1455).

(c) The term "consumer commodity" or "commodity" means any article, product, or commodity of any kind or class which is customarily produced or distributed for sale through retail sales agencies or instrumentalities for consumption by individuals, or use by individuals for purposes of personal care or in the performance of services ordinarily rendered within the household, and which usually is consumed or expended in the course of such consumption or use. For purposes of the regulations in this part the term "consumer commodity" does not include any food, drug, device or cosmetic as defined by section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321); any meat or meat product, poultry or poultry product, or tobacco or tobacco product, any commodity subject to packaging or labeling requirements imposed by the Secretary of Agriculture pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act, or the provisions of the eighth paragraph under the heading "Bureau of Animal Industry" of the Virus-Serum-Toxin Act (21 U.S.C. 151-157); any beverage subject to or complying with packaging or labeling requirements imposed under the Federal Alcohol Administration Act (27 U.S.C. 201 et seq.); any commodity subject to the provisions of the Federal Seed Act (7 U.S.C. 1551-1610).

(d) The term "package" means any container or wrapping in which any consumer commodity is enclosed for use in the delivery or display of that commodity to retail purchasers. For purposes of the regulations in this part the term "package" does not include shipping containers or wrappings used solely for the transportation of any consumer commodity in bulk or in quantity to manu

facturers, packers, or processors, or to wholesale or retail distributors thereof unless used in retail display; shipping containers or outer wrappings used by retailers to ship or deliver any commodity to retail customers if such containers and wrappings bear no printed matter pertaining to any particular commodity; or containers subject to the provisions of the Act of August 3, 1912 (37 Stat. 250, as amended; 15 U.S.C. 231-233), the Act of March 4, 1915 (38 Stat. 1186, as amended; 15 U.S.C. 234-236), the Act of August 31, 1916 (39 Stat. 673, as amended; 15 U.S.C. 251-256), or the Act of May 21, 1928 (45 Stat. 685, as amended; 15 U.S.C. 257-257i); or transparent wrappers or containers which do not bear written, printed, or graphic matter obscuring any part of the label information required by this part.

(e) The term "label" means any written, printed, or graphic matter affixed to or appearing upon any consumer commodity or affixed to or appearing upon a package containing any consumer commodity; except that (1) an inspector's tag or other nonpromotional matter affixed to or appearing upon a consumer commodity shall not be deemed to be a label requiring the repetition of label information required by this part, and, (2) for the purposes of the regulations in this part the term "label" does not include written, printed, or graphic matter affixed to or appearing upon commodities, or affixed to or appearing upon containers or wrappers for commodities sold or distributed to industrial or institutional users.

(f) The term "person" inclules any firm, corporation or association.

(g) The term "commerce" means (1) commerce between any State, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States, and any place outside thereof, and (2) commerce within the District of Columbia or within any territory or possession of the United States, not organized with a legislature, but shall not include exports to foreign countries.

(h) The term "principal display panel" means that part of a label that is most likely to be displayed, presented, shown, or examined under normal and customary conditions of display for retail sale. The principal display panel must be large enough to accommodate all the mandatory label information required to be placed thereon by this part