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Federal Register / Vol. 86, No. 132 / Wednesday, July 14, 2021 / Rules and Regulations
Product of USA designation may be deceptive. I am extremely grateful to Secretary Tom Vilsack and USDA staff for the action they are taking.
I hope the USDA will study the FTCs rulemaking record carefully and come to the same conclusion I have: The USDAs Product of USA standard is misleading and distorts competition in the retail market for beef and other products. I also believe that unqualified Product of USA claims for meat products are only appropriate when the animal was born, raised, and slaughtered in the United States. Given our shared jurisdiction, I expect that the Commission will deepen its partnership with the USDA and closely coordinate on any enforcement proceeding with respect to retail sales of meat and other products.
Conclusion The Commission appreciates the substantial public interest in protecting the Made in USA brand. The final rule provides substantial benefits to the public by protecting businesses from losing sales to dishonest competitors, and protecting families seeking to purchase American-made goods. More broadly, this long-overdue rule is an important reminder that the Commission must do more to use the authorities explicitly authorized by Congress to protect market participants from fraud and abuse. I thank my fellow Commissioners and members of the Commission staff who contributed to the development of this final rule, as well as members of the public for their thoughtful contributions.

Appendix II: Dissenting Statement of Commissioner Christine S. Wilson
lotter on DSK11XQN23PROD with RULES1

Today the Commission announces a Final Rule with respect to Made in USA MUSA
labels. I support the FTCs prosecution of MUSA fraud 1 and supported its consideration of a rule that addresses deceptive MUSA claims on labels, consistent with the authority granted to the FTC by Congress in Section 45a. The Rule 1 I have voted to support every MUSA
enforcement action recommended to the Commission by staff since joining the Commission.
See In the Matter of Gennex Media, LLC No. C4741
Apr. 2021, https www.ftc.gov/system/files/
documents/cases/2023122gennexmediafinalorder.
pdf; In the Matter of Chemence, Inc., et al., No. 4738
Feb. 2021, https www.ftc.gov/system/files/
documents/cases/2021-02-10_chemence_admin_
order.pdf; In the Matter of Williams-Sonoma, Inc., No. C4724 July 2020, https www.ftc.gov/
system/files/documents/cases/2023025c4724
williamssonomaorder.pdf; U.S. v. iSpring Water Systems, LLC, et al., No. 1:16cv1620AT N.D.
Ga. 2019; https www.ftc.gov/system/files/
documents/cases/172_3033_ispring_water_systems_
-_stipulated_order.pdf; In the Matter of Sandpiper Gear of California, Inc. et al., No. 1823095, https
www.ftc.gov/enforcement/cases-proceedings/1823095/sandpiper-california-inc-et-al-matter;
Underground Sports d/b/a Patriot Puck, et al., No.
1823113 April 2019, https www.ftc.gov/
enforcement/cases-proceedings/182-3113/
underground-sports-inc-doing-business-patriotpuck-et-al; In the Matter of Nectar Sleep, LLC, No.1823038 Sept. 2018, https www.ftc.gov/
enforcement/cases-proceedings/182-3038/nectarbrand-llc.

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announced today, however, exceeds that authority.
Section 45a of the FTC Actthe provision pursuant to which we advance this Rule authorizes the Commission to issue rules governing MUSA claims on products with a Made in the U.S.A. or Made in America label, or the equivalent thereof. The provision is titled Labels on products and repeatedly references labels. The Commission nonetheless has chosen to promulgate a rule that could be read to cover all advertising, not just labeling.
This Rule is not supported by the plain language of 45a. It is clear Congress intended to extend rulemaking authority over the many potential variations or equivalents of Made in the U.S.A. or Made in America claims that may be found on labels, not labels and claims made in advertising or marketing. The legislative history for Section 45a supports this interpretation. Specifically, the Conference Report on H.R. 3355
discusses any label characterizing a product as Made in the U.S.A. or the equivalent thereof, signaling Congress intent that the statute should cover not just literal invocations of Made in the U.S.A., but also equivalents to that claim i.e., Made in America, American Made, and so on.2
The Commissions Rule defines the term far more broadly than any FTC precedent, and in a way that, in my view, exceeds our statutory grant of rulemaking authority.3 The Rule we issue today will cover not just labels, but all:
materials, used in the direct sale or direct offering for sale of any product or service, that are disseminated in print or by electronic means, and that solicit the purchase of such product or service by mail, telephone, electronic mail, or some other method without examining the actual product purchased 4 that include a seal, mark, tag, or stamp labeling a product Made in the United States. 5
This language could bring within the scope of the Rule stylized marks in online advertising or paper catalogs and potentially other advertising marks, such as hashtags, that contain MUSA claims.6
In the statement I issued when the Commission sought comment on this 2 Conf. Rep. on H.R. 3355 filed in House 8/21/1994.
3 Several commenters echoed the concerns I
raised in my statement when the Commission sought comment on this proposed Rule and those raised by Commissioner Phillips. See Council for Responsible Nutrition Comment; Personal Care Products Council Comment; National Association of Manufacturers Comment; Anonymous Comment 592.
4 See Part 323.1b.
5 See Part 323.3.
6 Guidance on the definition of label can be found in analogous FTC rules and guides in a variety of contexts. There, labels repeatedly have been defined as a distinct subcategory of advertising in other words, not coterminous with advertising1
and have been described as objects attached to a product or its packaging.1 Given both the statutory guidance Congress provided when it drafted this statute, and precedent concerning the term label in FTC rules and guides, the Commission has ample landmarks to draft a Rule that falls within its jurisdictional boundaries.

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proposed Rule, I noted that were Congress drafting this statute now, it might choose language to encompass those broader contexts, including online advertising.7 But there was no plausible argument to be made that the ordinary meaning of the text when enacted in 1994 encompassed online advertisinga period when online shopping was largely unfamiliar to most consumers.8
As it happens, the Senate recently passed the Country of Origin Labeling Online Act COOL Act, which prohibits deceptive country-of-origin representations. There Congress did, in fact, specify its application to labeling as well as other forms of online advertising:
it shall be unlawful to make any false or deceptive representation that a product or its parts or processing are of United States origin in any labeling, advertising, or other promotional materials, or any other form of marketing, including marketing through digital or electronic means in the United States.9
This language, in contrast to Section 45a, leaves no doubt it applies to labeling and advertising and confirms Congress views labeling as distinct from advertising or other promotional materials, including in an online context.
To the extent the Commission seeks to issue a broader prohibition on Made in USA
fraud, as Commissioner Chopra asserted when the Commission sought comment on this Rule, it has other options. The Commission can institute a rulemaking proceeding pursuant to Section 18 of the FTC
Act. Several commenters suggested that rather than promulgate a limited rule for labeling claims, the Commission should conduct a full proceeding to address all advertising claims.10 The Commission has not taken this action. The Commission alternatively could work with Congress to effectuate the passage of the COOL Act, which would appear to moot this Rule if enacted.
Accordingly, because this Rule exceeds the scope of authority granted by Congress to the FTC, I dissent. I do not support creatively and expansively interpreting the agencys jurisdiction with respect to rulemaking authority.
The Commission, for more than 80 years, built a comprehensive program to ensure 7 Statement of Commissioner Christine S. Wilson Concurring in Part, Dissenting in Part, Notice of Proposed Rulemaking related to Made in USA
Claims June 22, 2020, https www.ftc.gov/system/
files/documents/public_statements/1577099/
p074204musawilsonstatementrev.pdf.
8 Report: Americans Going Online . . . Explosive Growth, Uncertain Destinations, Pew Research Center Oct. 16, 1995 noting most consumers are still feeling their way through cyberspace . . . and have yet to begin purchasing goods and services online, available at: https www.peoplepress.org/1995/10/16/americans-going-onlineexplosive-growth-uncertain-destinations/.
9 U.S. Innovation and Competition Act, S. 1260, Section 2510, 117th Cong. June 8, 2021, https
www.democrats.senate.gov/imo/media/doc/
DAV21A48.pdf.
10 See UIUC Accounting Group Comment; Shirley Boyd Comment; UIUCBADM Comment; Senators Comment; United Steelworkers Comment; Women Involved in Farm Economics/Pam Potthoff Beef Chairman Comment.

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