FTC Approves Proposal Rescinding Nursery Guides

Following a public comment period, the Federal Trade Commission has approved a proposal to rescind its Guides for the Nursery Industry because they no longer appear necessary and thus serve little purpose for industry or consumers.

Issued in 1979, the Guides address sales practices for outdoor plants, including deceptive advertising claims regarding quantity, size, grade, kind, species, age, maturity, condition, vigor, hardiness, growth ability, price, and origin or place where grown.

As part of its systematic review of all current FTC rules and guides, the FTC sought comment last year on a proposal to rescind the Nursery Guides. After reviewing the comments, the Commission has determined to remove the Guides as proposed. In doing so, the Commission found that the practices addressed in the Guides are not prevalent in the market, industry members appear to make little use of the Guides, and the Guides do not substantially add to general FTC guidance on deceptive practices. In addition, the Guides’ rescission does not change sellers’ obligations to avoid deceptive practices and otherwise comply with the law, nor will it affect the FTC’s ability to address deceptive practices in the nursery industry. If the Commission were to determine that certain practices in the sale of outdoor plants are materially misleading, it could address such practices through enforcement actions under Section 5 of the FTC Act. Finally, given specific concerns raised by commenters about wild plant information in the Guides, the FTC staff plans to continue to provide business guidance on this topic through its online Business Center.

The Commission vote to approve the Federal Register Notice rescinding the Guides was 3-2, with Commissioners Rohit Chopra and Rebecca Kelly Slaughter voting no. The notice announcing the rescission has been published in the Federal Register, and that action will take effect on June 12, 2019. (FTC File No. P994248; the staff contact is Hampton Newsome, Bureau of Consumer Protection, 202-326-2889.)

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