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Federal Register / Vol. 86, No. 132 / Wednesday, July 14, 2021 / Rules and Regulations
marketplace.101 As that proceeding unfolds, the Commission remains committed to engaging with the USDA
to ensure American consumers receive truthful and accurate information about the beef products they buy.
Under its COOL regulations, USDAs AMS has primary authority over country-of-origin labels for most fish and shellfish products.102 Because Section 45as general grant of rulemaking authority does not authorize the Commission to issue regulations that would preclude the application of existing statutes and regulations addressing agricultural product labeling, the FTC defers to AMSs regulatory scheme for COOL for fish and shellfish.
Section 323.5 makes clear the rule does not supersede, alter, or affect any other federal statute or regulation relating to country-of-origin labeling requirements.
However, to the extent certain, limited categories of agricultural products fall outside USDAs jurisdiction, the Commission will analyze claims on a case-by-case basis and consult with other agencies as appropriate.103
E. Other Proposals Some commenters proposed a series of other amendments, arguing variously that the Rule should preempt state law entirely; 104 cover MUSA advertising generally; 105 make country-of-origin labeling mandatory for all products; 106
incorporate provisions relating to qualified U.S.-origin claims; 107 and 101 Id.
102 7

U.S.C. 16381; 7 CFR 60.128.
FTC notes deceptive claims on restaurant menus appear to be largely a regional issue, and therefore are being addressed through state legislation. See, e.g., La. R.S. 40:5.5.4 requiring food service establishments to provide notice to consumers if crawfish or shrimp is imported; La.
R.S. 56:578.14 No owner or manager of a restaurant that sells imported crawfish or shrimp shall misrepresent to the public, either verbally, on a menu, or on signs displayed on the premises, that the crawfish or shrimp is domestic.. FTC staff will continue to monitor this issue.
104 BWC 622; AAFA 675. Additionally, PCPC
589 argued the Rule should specifically preempt a private right of action. However, two commenters agreed with the section as drafted as a means to ensure regulatory certainty and consistency of product U.S. origin labels nationwide. RILA 570.
See also NAM 623 recognizing the value of utilizing preemption to create a uniform MUSA
standard.
105 UIUC Accounting Group A13 5; Shirley Boyd 6; UIUCBADM 40A02 22; Senators 373;
United Steelworkers 526; Women Involved in Farm Economics/Pam Potthoff Beef Chairman 672.
106 The Commission received 30 comments arguing country-of-origin labeling should be mandatory for all products. See, e.g., J R. Brookshire 9. Additionally, six commenters argued specifically in favor of mandatory country-of-origin labeling for all products sold online. See, e.g., Made in USA Foundation 2.
107 Twelve commenters requested coverage of qualified claims. See, e.g., Shirley Boyd 6; United Steelworkers 526; AAM 611; CPA 625.

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include language specifically correlating penalties to firm sizes.108 The Commission declines to adopt these changes, which are inconsistent with its rulemaking mandate under Section 45a.
As discussed above, Section 45a grants the Commission authority to issue rules to prevent unfair or deceptive acts or practices relating to MUSA labeling.
Specifically, Section 45a authorizes the Commission to issue rules to require MUSA labeling to be consistent with decisions and orders of the Federal Trade Commission issued pursuant to Section 5 of the FTC Act. The FTC
may seek civil penalties for violations of such rules.
1. Preemption The Commission intends to preempt state statutes or regulations that are inconsistent with the Commissions rules only to the extent of the inconsistency.109 When it enacted Section 45a, Congress declined to expressly preempt state regulation or otherwise demonstrate a clear intent for federal law to occupy the field of regulation in question.110 Accordingly, Section 323.5 of the Rule preempts a state statute, regulation, order, or interpretation to the extent that such statute, regulation, order, or interpretation is inconsistent with the provisions of this part, and then only to the extent of the inconsistency.
Moreover, the rule makes clear that a state statute, regulation, order, or interpretation is not inconsistent with the rule if the protection such statute, regulation, order, or interpretation affords any consumer is greater than the protection provided by the rule.
2. MUSA Advertising Generally Some commenters encouraged the Commission to expand the proposed rule to cover all advertising that includes any U.S.-origin claim, rather than focusing as proposed on MUSA
labeling.111 Section 45a, however, is directed at labels on products declaring that a product is in whole or substantial part of domestic origin and thus may be labeled Made in the U.S.A., or the equivalent thereof. The 108 Six commenters argued civil penalties should be linked to company size. See, e.g., Chris Posey 7.
109 See City of New York v. FCC, 486 U.S. 57, 64
1988 The statutorily authorized regulations of an agency will pre-empt any state or local law that conflicts with such regulations or frustrates the purposes thereof..
110 See, e.g., Mozilla v. FCC, 940 F.3d 1, 7475
D.C. Cir. 2019.
111 See, e.g., Shirley Boyd 6 The FTCs final rules should apply to labeling, advertising and other promotional and marketing materials in addition to labels and mail order catalogs/
promotional materials..

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statute does not explicitly address general advertising claims beyond the context of labeling. Accordingly, in enacting this rule, the Commission has not focused on advertising more generally, but retains the proposed rules focus on MUSA claims on labels or in mail order or catalog advertising, including in online marketplaces, that depict a product label. However, the FTCs general authority under Sections 5 and 12 of the FTC Act covers advertising, including advertising of qualified and unqualified MUSA
claims.112
3. Mandatory Country-of-Origin Labeling Other commenters recommended the Commission make country-of-origin labeling mandatory. For example, the Made in USA Foundation proposed that the Rule should require that all advertisements for specified categories of products, including all products advertised for sale on the internet, disclose the country of origin of the products in a clear and prominent manner.113 While the Commission acknowledges that many consumers may find such information to be valuable in many circumstances, Section 45a does not authorize the Commission to establish a mandatory country-of-origin labeling scheme. The statute grants the Commission authority to issue rules to ensure that Made in USA claims are not deceptive and are consistent with the Commissions decisions and orders defining unfair or deceptive acts or practices under Section 5. Accordingly, the Commission lacks authority under Section 45a to enact this proposal.
4. Qualified U.S.-Origin Claims Some commenters also argued that the rule should also address qualified U.S.-origin claims. The United Steelworkers asserted that, as firms with global supply chains seek to benefit from the value consumers place in products with American content, we must ensure that qualified claims accurately represent the level of value creation in the United States. 114
Section 45a, however, is directed to labels on products declaring that a product is in whole or substantial part of domestic origin, and therefore the Rule is directed to unqualified claims, rather than more varied qualified claims. Accordingly, the FTC will continue to address deceptive qualified U.S.-origin claims under its general 112 15

U.S.C. 45a, 52.
in USA Foundation 2.
114 United Steelworkers 526.
113 Made
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