Federal Register: April 7, 2008 (Volume 73, Number 67)
DOCID: fr07ap08-16 FR Doc E8-7179
FEDERAL TRADE COMMISSION
Federal Trade Commission
CFR Citation: 16 CFR Part 303
NOTICE: PROPOSED RULES
DOCUMENT ACTION: Reopening of comment period.
Rules and Regulations Under the Textile Fiber Products Identification Act
DATES: Comments will be accepted until May 5, 2008.
The Federal Trade Commission (``Commission'' or ``FTC''), pursuant to a Petition filed by Mohawk Industries, Inc. (``Mohawk''), E. I. du Pont de Nemours and Company (``DuPont''), and PTT Poly Canada (``PTT Canada'') (hereinafter ``Petitioners''), solicited comments on whether the Commission should: amend Rule 7(c) of the Rules and Regulations Under the Textile Fiber Products Identification Act (``Textile Rules'') to establish a new generic fiber subclass name and definition within the existing definition of ``polyester'' for a specifically proposed subclass of polyester fibers made from poly(trimethylene terephthalate) (``PTT''); amend Rule 7(c) to broaden or clarify its definition of ``polyester'' to describe more accurately the PTT fiber; or retain Rule 7(c)'s definition of ``polyester.'' The Commission received comments through November 12, 2007. Based on those comments, the Commission is reopening the comment period for an additional 30 days.
Textile Fiber Products Identification Act; Rules and Regulations,
In a Federal Register Notice,\2\ the
Commission solicited comments on whether to amend Rule 7(c) of the
Rules and Regulations Under the Textile Fiber Products Identification
Act (``Textile Rules'') to establish a new generic fiber subclass name
and definition within the existing definition of ``polyester.''
Specifically, the Commission asked whether it should establish a new
subclass of polyester fibers made from PTT. At the close of the comment
period on November 12, 2007, the Commission had received 49
comments.\3\ With the exception of one comment, from INVISTA S. r.l.
(``INVISTA''),\4\ all of the commenters stated that they favored
amending the Textile Rules to add a generic fiber subclass designation for PTT.
\2\ 72 Fed. Reg. 48,600 (Aug. 24, 2007).
\3\ The 49 comments can be found at: http://www.ftc.gov/os/ comments/textilemohawk/index.shtm
\4\ INVISTA's comment can be found at: http://www.ftc.gov/os/ comments/textilemohawk/53204700053.pdf
The Commission received INVISTA's comment opposing the Petition
three days prior to the close of the 75 day comment period. Thus, the public had
only limited opportunity to review and respond to it.\5\ INVISTA's comment, which includes additional testing comparing PTT with conventional polyester (``PET''), calls into question the merits of the Petition, and raises issues worthy of additional time for public review and comment.
\5\ Prior to the comment period closing, the Commission did not receive any comments responding to INVISTA's comment.
INVISTA's comment states that Petitioners failed to meet the
Commission's standard for establishing a new generic fiber subclass for
PTT. Under the Commission's standard, a new generic fiber subclass is
appropriate if it: (1) has the same general chemical composition as an
established generic fiber category, and (2) has distinctive properties
of importance to the general public as a result of a new method of
manufacture or substantially differentiated physical characteristics,
such as fiber structure.\6\ INVISTA argues that Petitioners failed to satisfy the second prong of this standard for two reasons.
\6\ The Commission articulated a standard for establishing a new generic fiber subclass in the ``lyocell'' proceeding (16 CFR 303.7(d)). There, the Commission noted that:
Where appropriate, in considering applications for new generic
names for fibers that are of the same general chemical composition
as those for which a generic name already has been established,
rather than of a chemical composition that is radically different,
but that have distinctive properties of importance to the general
public as a result of a new method of manufacture or their
substantially differentiated physical characteristics, such as their
fiber structure, the Commission may allow such fiber to be
designated in required information disclosures by either its generic
name or, alternatively, by its ``subclass'' name. The Commission
will consider this disposition when the distinctive feature or
features of the subclass fiber make it suitable for uses for which
other fibers under the established generic name would not be suited, or would be significantly less well suited.
60 FR 62352, 62353 (Dec. 6, 1995).
First, INVISTA asserts that because PTT performed differently than
PET on such a small percentage of performance characteristics important
to consumers (two out of 10),\7\ PTT is not sufficiently distinctive.
Thus, INVISTA argues, the Petition is ``fatally flawed'' and the
Commission cannot conclude that PTT fibers are ``significantly better suited'' than PET fibers in carpet applications.
\7\ As set forth in Table 1 of the Petition, consumer survey evidence indicates these carpet performance characteristics are: common spills and pet accidents can be easily removed; carpet is durable; dirt and soil can be easily removed; areas where spills have been cleaned will not be visible; stain resistant properties will not diminish over time; soil resistant properties will not diminish over time; carpet color will stay the same and will not fade; heavy soil and most stains can be removed from the carpet with water; carpet pile will not shed or fuzz; and carpet is soft.
Second, even if superiority as to only two of the top 10 carpet
applications could satisfy the standard, INVISTA argues that the
Petition does not substantiate the assertion that PTT is superior to
PET. With regard to carpet durability, INVISTA states that Petitioner's
test was inadequate because: (1) Petitioners used the Hexapod Wear
Test, a relatively lightduty test of the performance of PET and PTT,
and did not use the Vettermann Drum test, which INVISTA alleges better
simulates how carpet holds up under actual use; (2) INVISTA's own
testing using the Vettermann Drum test showed no meaningful difference
between PET and PTT;\8\ and (3) Petitioners compared finer, lighter
weight PET fibers with thicker, heavier weight PTT fibers, thus making a meaningful comparison impossible.
\8\ INVISTA submitted additional durability and appearance testing comparing PTT and PET carpets which it argued showed that ``PTT performed very much like PET.'' Only one other commenter, Independent Textile Testing Service, Inc. (``Independent''), stated that it had tested PTT. Independent stated that over the past 10 years it had been involved in extensive testing of the PTT fiber pertaining to carpet usage and that its testing included pedestrian traffic, soiling, staining, static, and colorfastness. Independent said that PTT performed much better than PET in foot traffic ratings and concluded that it would benefit the consumer to know that there were distinct differences between PET and PTT. Independent's comment can be found at: http://www.ftc.gov/os/comments/textilemohawk/ 53204700047.htm.
INVISTA also argues that the Petition does not substantiate the
assertion that PTT is superior with respect to softness. INVISTA states
that rather than submitting any test results or survey data indicating
how soft PTT fibers feel to consumers in actual carpet application,
Petitioners presented ``irrelevant'' laboratory testing regarding
deflection properties.\9\ INVISTA argues that Petitioners failed to
show that such testing reveals differences meaningful to consumers
evaluating the softness of carpets. INVISTA relies on a similar
analysis to argue that the Petitioners failed to demonstrate that PTT fabrics are softer than PET fabrics.\10\
\9\ The Petition states that a very useful measure of the difference in yarn softness is the force or stress required to deflect or strain a fiber a given distance.
\10\ Concerning both carpet and apparel applications, INVISTA also argues that the Petition failed to address how different manufacturing techniques affect softness. INVISTA states that the Petition failed to address the possibility that the same level of softness provided by PTT could be achieved using PET fibers and different manufacturing techniques.
Furthermore, INVISTA contends that the Petition does not substantiate the assertion that PTT is superior with respect to stretch with recovery of apparel products. INVISTA argues that Petitioners failed to present the results of any reliable testing methodology showing that PTT fibers ``recover'' from stretching better than PET fibers. INVISTA states that Petitioners' testing for stretch and recovery was flawed, in part, because Petitioners failed to demonstrate that the amount of tension used in the test simulates the tension applied in actual consumer use of garments.
INVISTA's comment discusses another reason why it believes the
Commission should deny the Petition. Specifically, INVISTA states that
two of Petitioners' three suggested new generic subclass names for PTT
``appear to be intentionally designed to create confusion with existing INVISTA trademarks.''\11\
\11\ INVISTA argues that Petitioners' proposed names
``resisoft'' and ``durares'' are ``alarmingly similar'' to INVISTA's ResisTech[reg] and DuraTech[reg] brand names, respectively.
INVISTA raises arguments that merit further discussion.\12\ Because
Petitioners and other interested parties had limited opportunity to
review and comment on INVISTA's comment prior to the close of the
public comment period, a full discussion of the issues has been
impossible. Therefore, the Commission has decided to reopen the comment
period for 30 days. The Commission believes that the benefit of
enhancing the record by reopening the comment period outweighs any delay stemming from reopening the comment period.
\12\ In addition to these arguments, INVISTA dismisses as irrelevant Petitioners' argument that it might be difficult to recycle PTT and PET together due to their different properties and that the subclass designation would help recyclers separate PTT from PET fibers to avoid any such difficulty.
List of Subjects in 16 CFR Part 303
Labeling, Textile, Trade Practices.
Authority: Sec. 7(c) of the Textile Fiber Products Identification Act (15 U.S.C. 70e(c)).
By direction of the Commission.
Donald S. Clark
[FR Doc. E87179 Filed 4407: 8:45 am]
BILLING CODE 675001S
FOR FURTHER INFORMATION CONTACT
Janice Podoll Frankle, Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Washington, DC 20580; (202) 3263022.