The U.S. Federal Trade Commission is considering changes to the regulation and enforcement of “Made in the USA,” “Made in USA,” and other U.S.-origin claims in labeling and advertising. The Commission held a public meeting on September 26, 2019, and is seeking stakeholder input as it considers potential changes. Comments are due by October 11, 2019. We provide a brief summary below.

Background and Summary

Section 5 of the Federal Trade Commission Act (15 U.S.C. § 45(a)) applies to the use of “Made in USA” and similar claims in advertising and labeling. To date, the FTC has not issued regulations specific to such claims. Instead, the 1997 FTC Enforcement Policy Statement On U.S. Origin Claims was issued to address how the Commission applies Section 5 to U.S.-origin claims in advertising and labeling and provide guidance on compliance. Among other things, the Policy Statement discusses both unqualified and qualified “Made in USA” claims. Unqualified claims must be supported by a “reasonable basis” for asserting that “all or virtually all” of the product is made in the United States, and qualified claims must make clear aspects of the product that are not U.S.-made, as well as be truthful, substantiated, and not misleading.

As noted, the FTC held a public meeting recently with the goals of: (i) better understanding consumer perception of “Made in USA” and other U.S.-origin claims, and (ii) considering whether, and how to, improve the FTC’s current “Made in USA” enforcement program.

The meeting agenda and attendees included regulators, as well as industry, academic, and consumer stakeholders. It was organized into the broad areas of consumer perception, compliance, and enforcement. FTC staff asked for comment regarding application of the law to both U.S.-based and non-U.S. manufacturers. The meeting announcement included 15 questions for which the Commission was particularly interested in receiving comments or additional data from stakeholders, such as how consumers interpret “Made in USA” claims and whether the interpretation varies depending on the type of product; what remedies the FTC should seek for violations; and the effect of such claims on advertising and sales. These are merely a few of the FTC questions, and commenters can address related issues as well.

During the enforcement panel, FTC staff expressly requested comment on how well the current enforcement efforts are working, what can be improved, and whether the FTC should issue implementing regulations, as well as what should be included in such regulations, should the Commission decide to do so.

AGG Observations

• All product manufacturers may have an interest in whether and how the FTC changes its approach to “Made in USA” and other U.S.-origin claims. In the Food and Drug Administration-regulated space, this issue can be particularly tricky for companies that market cosmetics, over-the-counter drugs, or dietary supplements.
  • Companies should follow the FTC developments, particularly if a proposed rule is issued or there is an updated enforcement policy statement.
• Companies with a particular interest in future FTC regulation and enforcement in this area should review the public meeting materials and consider submitting a comment to FTC, either directly, or as part of a larger group or association.

Footnotes for this alert are available in the formatted PDF accessible below.

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“Made in the USA” Claims: The FTC is Considering Changes to Regulation and Enforcement