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Federal Register / Vol. 86, No. 104 / Wednesday, June 2, 2021 / Proposed Rules
I have repeatedly urged the Commission 2
to seek comment on the more prescriptive aspects of this Rule. As I have noted in prior statements, the Rule includes highly prescriptive requirements detailing the trim size dimensions for labels, including the precise width between 514 to 512 and length between 738 and 758; the number of picas for the copy set between 27 and 29;
the type style Arial and setting; the weight of the paper stock on which the labels are printed not less than 58 pounds per 500
sheets or equivalent; and a suggested minimum peel adhesive capacity of 12
ounces per square inch.3 For example, the label example attached to the Rule specifies not only the categories of information to be displayed, but also the precise font and point size in which that information is to be printed. For example, the cooling efficiency number must appear in 38 pt. Arial Narrow Bold. And while the phrase US
Government at the top must be printed in 10 pt. Arial Narrow, the text next to it that reads Federal law prohibits removal of this label before consumer purchase must be printed in 9 pt. Arial Narrow. See Attachment 1 Labeling Requirements.
The Energy Labeling Rule exemplifies the era in which it was created. The FTC
promulgated the Rule in the 1970s, an era when the agency was engaged in prolific and highly prescriptive rulemaking.4 As I have
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2 See Dissenting Statement of Commissioner Christine S. Wilson on the Notice of Proposed Rulemaking: Energy Labeling Rule Dec. 10, 2018
expressing my view that the Commission should seek comment on the prescriptive labeling requirements, https www.ftc.gov/publicstatements/2018/12/dissenting-statementcommissioner-christine-s-wilson-notice-proposed;
See Dissenting Statement of Commissioner Christine S. Wilson on the Notice of Proposed Rulemaking: Energy Labeling Rule Oct. 22, 2019
urging the Commission to seek comment on the labeling requirements, https www.ftc.gov/system/
files/documents/public_statements/1551786/
r611004_wilson_dissent_energy_labeling_rule.pdf.
3 See 16 CFR 305.13 and 305.20.
4 See, e.g., Timothy J. Muris, Paper: Will the FTCs Success Continue?, George Mason Law &
Economics No. 18 Sept. 24, 2018 discussing the successes and failures of the FTCs enforcement efforts including the aggressive rulemaking activities in the 1970s, available at: https
papers.ssrn.com/sol3/papers.cfm?abstract_
id=3254294; Timothy J. Muris, Rules Without Reason, AEI J. on Govt and Society Sept/Oct.
1982 describing failed FTC rulemaking proceedings, available at: https www.cato.org/
sites/cato.org/files/serials/files/regulation/1982/9/
v6n5-4.pdf; Teresa Schwartz, Regulating Unfair Practices Under The FTC Act: The Need For a Legal
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noted previously,5 no area of commerce was too straightforward or mundane to escape the Commissions notice:
The Trade Regulation Rule concerning Deception as to Non-Prismatic and Partially Prismatic Instruments Being Prismatic Binoculars 6 addressed failures to disclose instruments having bulges on the tubes which simulate prismatic instruments are not prismatic instruments or do not contain complete prism systems and provided detailed definitions of six types of binoculars and field glasses.
The Trade Regulation Rule concerning Failure to Disclose that Skin Irritation May Result from Washing or Handling Glass Fiber Curtains and Draperies included a Commission conclusion that the failure to disclose that skin irritation may result from body contact with glass fiber drapery and curtain fabrics, and clothing or other articles which have been washed with such glass fiber products or in containers previously used for washing such products when that container has not been cleansed of glass particles, has the capacity and tendency to mislead and deceive purchasers and prospective purchasers and to divert business from competitors whose products may be washed or handled without the resulting irritation. 7
The Guides for the Ladies Handbag Industry addressed the use of the terms scuffproof, scratchproof, scuff resistant, and scratch resistant;
representations that a product is colored, Standard of Unfairness, 11 Akron Law Rev. 1 1978
explaining that the judicial reversals of FTC
regulations resulted from a failure to establish an adequate legal basis for the regulations, available at: https ideaexchange.uakron.edu/
akronlawreview/vol11/iss1/1/.
5 See Concurring Statement of Commissioner Christine S. Wilson, Amplifier Rule Dec. 17, 2020, https www.ftc.gov/system/files/documents/
public_statements/1585038/csw_amplifier_rule_
stmt_11192020.pdf; Dissenting Statement of Commissioner Christine S. Wilson on the Notice of Proposed Rulemaking: Energy Labeling Rule Dec.
10, 2018, https www.ftc.gov/public-statements/
2018/12/dissenting-statement-commissionerchristine-s-wilson-notice-proposed.
6 16 CFR 402, https www.ftc.gov/sites/default/
files/documents/federal_register_notices/traderegulation-rule-concerning-deception-nonprismatic-and-partially-prismatic-instrumentsbeing/950523non-prismatic.pdf.
7 16 CFR 413.3c, https www.ftc.gov/sites/
default/files/documents/federal_register_notices/
trade-regulation-rule-deceptive-advertising-andlabeling-size-tablecloths-and-related-products-16/
950523advertisingandlabelingasto.pdf.

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finished or dyed with aniline dye or otherwise dyed, embossed, grained, processed, finished or stitched in a certain manner; and required disclosures to be made with respect to a products composition.8
In March 2020, we sought comment on some of the more prescriptive provisions of the Energy Labeling Rule 9 and received many interesting and thoughtful comments.10
Rather than act on these comments or proposals, though, the Commission chose to finalize only proposals necessary to conform to Department of Energy changes.11 Again today, the Commission chooses to make minor changes necessary for conformity but fails to conduct a full review of the Rule to consider removing all dated and prescriptive provisions, and to consider the recent comments suggesting changes.
The Commission last conducted a full review of the Energy Labeling Rule in 2015.
Under our 10-year regulatory review schedule, the next review is scheduled for 2025. Nothing, however, prevents the Commission from conducting this review now. I again urge the Commission to act on the comments we received last year, eliminate the more prescriptive aspects of the Rule, and maximize the positive impact of this Rule for consumers. If we are statutorily mandated to maintain this Rule, we should endeavor to make it beneficial for consumers and competition.
8 16 CFR 247, https www.ftc.gov/sites/default/
files/documents/federal_register_notices/guidesluggage-and-related-products-industry-guides-shoecontent-labeling-and-advertising-and-guides/
950918luggageandrelatedproducts.pdf.
9 See Concurring Statement of Commissioner Christine S. Wilson on the Notice of Proposed Rulemaking: Energy Labeling Rule Mar. 20, 2020, https www.ftc.gov/system/files/documents/
public_statements/1569815/r611004_wilson_
statement_energy_labeling.pdf.
10 See, e.g., Air-Conditioning, Heating and Refrigeration Institute AHRI Comment 3309, available at: https www.regulations.gov/
document?D=FTC-2020-0033-0009; Association of Home Appliance Manufacturers AHAM Comment 3304, available at: https www.regulations.gov/
document?D=FTC-2020-0033-0004; Goodman Manufacturing Comment 3308, available at:
https www.regulations.gov/document?D=FTC2020-0033-0008.
11 See Dissenting Statement of Commissioner Christine S. Wilson on Notice of Proposed Rulemaking: Energy Labeling Rule Dec. 22, 2020, https www.ftc.gov/system/files/documents/
public_statements/1585242/commission_wilson_
dissenting_statement_energy_labeling_rule_final1222-2020revd2.pdf.

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