Down...But Not Out: Advertising and Labeling of Feather Down
General Advertising Policies
Under the FTC Act, advertising claims about feather and down products must be truthful, non-deceptive, and substantiated. Some states also have their own laws that deal specifically with feather and down products.
According to the FTC, an ad is deceptive if it contains a statement — or omits information — that is likely to mislead a reasonable consumer and is “material” (important to a consumer’s decision to buy or use the product).
The FTC looks at an ad from the point of view of the "reasonable consumer" — a typical person looking at the ad. Rather than focusing on certain words, the FTC examines the ad in context — words, phrases and pictures — to determine what it conveys to consumers.
The FTC considers both "express" and "implied" claims. An express claim is explicitly stated in the ad. For example, "100% Eider down" is an express claim that the product contains 100% down from the Eider duck, without any other types of material. An implied claim is made indirectly or by inference. The claim "nature’s best insulation," accompanied by a picture of a goose, suggests to a consumer that the product is filled with goose down. Advertisers must have proof to back up all express and implied claims that a reasonable consumer would take from an ad.
The FTC also looks at what an ad does not say, and whether the failure to disclose information leaves consumers with a misimpression about the product. For example, consumers expect that products labeled as feather- or down-filled contain plumage that — to the extent mass production techniques allow — is not crushed or damaged. It would be deceptive to advertise and sell feather and down products with more than minimal crushed or damaged plumage without disclosing the amount of crushed or damaged plumage included.
A product may not be called "pure down," "all down," "100% down" — or be described by any other term indicating that the product contains only down — unless that is true. The same requirement applies to feathers and other filling materials.
Unqualified "Down" Claims. Consider the way a consumer is likely to interpret an ad or label that describes a product’s filling simply as "down." It’s reasonable to assume that consumers expect down content to be prepared with mass production techniques that maximize efficiency and down content. Applying those production techniques should yield down content of more than 70% for products labeled "down."
Percentage Claims. When a product label states a specific percentage of down or other plumage (say, "50% down, 50% waterfowl feathers"), there may be only a modest deviation of no more than 5%. This deviation must reflect the unavoidable variations of the manufacturing process, despite the exercise of due care.
In other words, a producer may not "shoot for the tolerance." For example, if a manufacturer produces pillows labeled "50% down, 50% waterfowl feathers," the FTC expects all or nearly all the pillows will be filled with 50% down and 50% waterfowl feathers. If all or a large portion of the pillows actually contain 45% down, the pillows must be relabeled "45% down." A manufacturer that deliberately labels pillows with a higher percentage of down content than it intends to put into the product is acting deceptively.
When a label identifies a particular species (for example, "goose down" or "duck down"), only a modest deviation because of unavoidable manufacturing variations, despite the exercise of due care, is acceptable.
Consumers expect that feather and down products will be free of foreign matter and contaminants. The industry can determine and convey cleanliness through the measurement of oxygen number. Because modern mass production techniques allow the industry to produce feather and down materials efficiently with oxygen numbers below 10, cleanliness of feather and down filling should be consistent with an oxygen number of less than 10, no matter how it is measured. Finished goods manufacturers and retailers may contract for feather and down material that is cleaner — or otherwise superior — to these minimum criteria. By doing so, and by making truthful and substantiated comparative claims in their ads, they can offer feather and down products that match consumers’ preferences. State health and tagging laws may apply to these products.
The FTC can seek various remedies against a company that uses false or deceptive ads or labels for feather and down products.
Cease and desist orders
The Commission can issue a cease and desist order to address deceptive or unfair claims regarding down. Such orders may require a marketer to:
- stop running the deceptive ad or engaging in the deceptive practice
- substantiate claims in future ads
- report to FTC staff about its compliance with the order, including substantiation for claims in new ads
Violations of cease and desist orders can result in civil penalties of up to $16,000 per violation.
Civil penalties for knowingly engaging in deceptive practices
An earlier Commission finding (in a case against another company) that a certain practice is deceptive can bind a company that is not subject to a cease and desist order. The company can be assessed civil penalties for knowingly engaging in the deception. This can happen when a synopsis of Commission decisions in a particular area is prepared and served on industry members. Many members of the industry have been served with a synopsis of prior Commission decisions about the labeling and advertising of down-filled products.
In some cases, the Commission has required companies to give full or partial refunds to all consumers who bought the product.
For More Information
Manufacturers of textile and wool products may be interested in the FTC’s new business guide and information provided by the International Association of Bedding and Furniture Law Officials (IABFLO) about the tagging of stuffed or filled products.