We have practiced in the consumer protection space collectively for more than 50 years and have not once had occasion to consult the Federal Trade Commission’s (FTC or Commission) Nursery Guides. Perhaps then it is no surprise that the FTC has decided that after 40 years it was time to say goodbye to the guides. Lest there be any confusion, “nursery” in this case refers to plants, not babies. The guides prohibited various misrepresentations about plants, including their age, hardiness, years to maturity, etc. In addition, the guides prohibited the use of names that misrepresent a plant’s true identity; the substitution of plants without notice; misrepresentations relating to size and grade or blooming or fruiting ability; failure to disclose whether plants were collected from the wild or misrepresenting the origin of a plant or bulb. (Now, you’re probably starting to realize why we’ve not counseled on this.) Unlike many of the more recent Commission guides, such as the Green Guides, the Nursery Guides typically do not provide examples of what a term or claim (e.g., “eco-friendly”) might imply.
As part of its periodic review of its regulations, the Commission asked for public comment on the continuing need for the guides in early 2018. In response, the Commission received a whopping five comments. A trade association argued in favor of rescission, three individuals opposed rescission and one organization argued that the guides should be rescinded except for the guidance on wild plants.
The Commission voted to rescind the guides based on the lack of evidence that the covered practices are being engaged in, the apparent lack of industry reliance on the guides and the fact that the guides primarily relate to express claims that clearly fall within the general scope of Section 5.
So why then are we writing about the rescission of guides that no one cared about in the first place? Primarily to point out that Commissioners Chopra and Slaughter dissented from the Commission’s decision. We’re not aware of either commissioner stating publicly why they dissented from the Commission’s action, but it does serve as yet one more illustration of how divided the Commission is on many issues, including, it seems, plants.