RULE SUMMARY:

The Fair Packaging and Labeling Act (FPLA or Act), enacted in 1967, directs the Federal Trade Commission and the Food and Drug Administration to issue regulations requiring that all “consumer commodities” be labeled to disclose net contents, identity of commodity, and name and place of business of the product’s manufacturer, packer, or distributor. The Act authorizes additional regulations where necessary to prevent consumer deception (or to facilitate value comparisons) with respect to descriptions of ingredients, slack fill of packages, use of “cents-off” or lower price labeling, or characterization of package sizes. The Office of Weights and Measures of the National Institute of Standards and Technology, U.S. Department of Commerce, is authorized to promote to the greatest practicable extent uniformity in State and Federal regulation of the labeling of consumer commodities.

Basic Requirements: The FPLA requires each package of household "consumer commodities" that is included in the coverage of the FPLA to bear a label on which there is:

• a statement identifying the commodity, e.g., detergent, sponges, etc.;
• the name and place of business of the manufacturer, packer, or distributor;
• and the net quantity of contents in terms of weight, measure, or numerical count (measurement must be in both metric and inch/pound units).

Purpose of the Act: The FPLA is designed to facilitate value comparisons and to prevent unfair or deceptive packaging and labeling of many household "consumer commodities."

FDA: The Food and Drug Administration (FDA) administers the FPLA with respect to foods, drugs, cosmetics, and medical devices. The FTC administers the FPLA with respect to other "consumer commodities" that are consumed or expended in the household. Many products that are exempt from the FPLA nevertheless fall within the purview of the Weights and Measures laws of the individual states.

The Antitrust Laws

Congress passed the first antitrust law, the Sherman Act, in 1890 as a "comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade." In 1914, Congress passed two additional antitrust laws: the Federal Trade Commission Act, which created the FTC, and the Clayton Act. With some revisions, these are the three core federal antitrust laws still in effect today.

The antitrust laws proscribe unlawful mergers and business practices in general terms, leaving courts to decide which ones are illegal based on the facts of each case. Courts have applied the antitrust laws to changing markets, from a time of horse and buggies to the present digital age. Yet for over 100 years, the antitrust laws have had the same basic objective: to protect the process of competition for the benefit of consumers, making sure there are strong incentives for businesses to operate efficiently, keep prices down, and keep quality up.

Here is an overview of the three core federal antitrust laws.

The Sherman Act outlaws "every contract, combination, or conspiracy in restraint of trade," and any "monopolization, attempted monopolization, or conspiracy or combination to monopolize." Long ago, the Supreme Court decided that the Sherman Act does not prohibit every restraint of trade, only those that are unreasonable . For instance, in some sense, an agreement between two individuals to form a partnership restrains trade, but may not do so unreasonably, and thus may be lawful under the antitrust laws. On the other hand, certain acts are considered so harmful to competition that they are almost always illegal. These include plain arrangements among competing individuals or businesses to fix prices, divide markets, or rig bids. These acts are " per se " violations of the Sherman Act; in other words, no defense or justification is allowed.

The penalties for violating the Sherman Act can be severe. Although most enforcement actions are civil, the Sherman Act is also a criminal law, and individuals and businesses that violate it may be prosecuted by the Department of Justice. Criminal prosecutions are typically limited to intentional and clear violations such as when competitors fix prices or rig bids. The Sherman Act imposes criminal penalties of up to $100 million for a corporation and $1 million for an individual, along with up to 10 years in prison. Under federal law, the maximum fine may be increased to twice the amount the conspirators gained from the illegal acts or twice the money lost by the victims of the crime, if either of those amounts is over $100 million.

The Federal Trade Commission Act bans "unfair methods of competition" and "unfair or deceptive acts or practices." The Supreme Court has said that all violations of the Sherman Act also violate the FTC Act. Thus, although the FTC does not technically enforce the Sherman Act, it can bring cases under the FTC Act against the same kinds of activities that violate the Sherman Act. The FTC Act also reaches other practices that harm competition, but that may not fit neatly into categories of conduct formally prohibited by the Sherman Act. Only the FTC brings cases under the FTC Act.

The Clayton Act addresses specific practices that the Sherman Act does not clearly prohibit, such as mergers and interlocking directorates (that is, the same person making business decisions for competing companies). Section 7 of the Clayton Act prohibits mergers and acquisitions where the effect "may be substantially to lessen competition, or to tend to create a monopoly." As amended by the Robinson-Patman Act of 1936, the Clayton Act also bans certain discriminatory prices, services, and allowances in dealings between merchants. The Clayton Act was amended again in 1976 by the Hart-Scott-Rodino Antitrust Improvements Act to require companies planning large mergers or acquisitions to notify the government of their plans in advance. The Clayton Act also authorizes private parties to sue for triple damages when they have been harmed by conduct that violates either the Sherman or Clayton Act and to obtain a court order prohibiting the anticompetitive practice in the future.

In addition to these federal statutes, most states have antitrust laws that are enforced by state attorneys general or private plaintiffs. Many of these statutes are based on the federal antitrust laws.

The Consumer Review Fairness Act (CRFA) protects people’s ability to share their honest opinions about a business’s products, services, or conduct, in any forum, including social media. Is your company complying?

Contracts that prohibit honest reviews, or threaten legal action over them, harm people who rely on reviews when making their purchase decisions. But another group is also harmed when others try to squelch honest negative reviews: businesses that work hard to earn positive reviews.

The Consumer Review Fairness Act was passed in response to reports that some businesses try to prevent people from giving honest reviews about products or services they received. Some companies put contract provisions in place, including in their online terms and conditions, that allowed them to sue or penalize consumers for posting negative reviews.

Here are some basic tips for complying with the law.

WHAT KIND OF REVIEWS DOES THE LAW PROTECT?

The law protects a broad variety of honest consumer assessments, including online reviews, social media posts, uploaded photos, videos, etc. And it doesn’t just cover product reviews. It also applies to consumer evaluations of a company’s customer service.

WHAT DOES THE CONSUMER REVIEW FAIRNESS ACT PROHIBIT?

In summary, the Act makes it illegal for a company to use a contract provision that:

bars or restricts the ability of a person who is a party to that contract to review a company’s products, services, or conduct;

imposes a penalty or fee against someone who gives a review; or

requires people to give up their intellectual property rights in the content of their reviews.

WHAT SPECIFIC CONDUCT IS PROHIBITED BY THE STATUTE?

The Consumer Review Fairness Act makes it illegal for companies to include standardized provisions that threaten or penalize people for posting honest reviews. For example, in an online transaction, it would be illegal for a company to include a provision in its terms and conditions that prohibits or punishes negative reviews by customers. (The law doesn’t apply to employment contracts or agreements with independent contractors, however.)

WHAT CAN A COMPANY DO TO PROTECT ITSELF FROM INAPPROPRIATE OR IRRELEVANT CONTENT?

The law says it’s OK to prohibit or remove a review that:

contains confidential or private information – for example, a person’s financial, medical, or personnel file information or a company’s trade secrets;

is libelous, harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic;

is unrelated to the company’s products or services; or

is clearly false or misleading.

However, it’s unlikely that a consumer’s assessment or opinion with which you disagree meets the “clearly false or misleading” standard.

WHAT’S THE PENALTY FOR VIOLATING THE CONSUMER REVIEW FAIRNESS ACT?

Congress gave enforcement authority to the Federal Trade Commission and the state Attorneys General. The law specifies that a violation of the CRFA will be treated the same as violating an FTC rule defining an unfair or deceptive act or practice. This means that your company could be subject to financial penalties, as well as a federal court order.

To make sure your company is complying with the Consumer Review Fairness Act:

• Review your form contracts, including online terms and conditions; and
• Remove any provision that restricts people from sharing their honest reviews, penalizes those who do, or claims copyright over peoples’ reviews (even if you’ve never tried to enforce it or have no intention of enforcing it).

The wisest policy: Let people speak honestly about your products and their experience with your company.

OPPORTUNITY TO COMMENT

The National Small Business Ombudsman and 10 Regional Fairness Boards collect comments from small businesses about federal compliance and enforcement activities. Each year, the Ombudsman evaluates the conduct of these activities and rates each agency’s responsiveness to small businesses. Small businesses can comment to the Ombudsman without fear of reprisal.

A binding contract typically includes key elements such as:

Offer and acceptance . When one party presents something of value that they wish to exchange with another party for something else of value, that is an offer. Once value is offered, it must either accepted or declined.

Consideration . The benefit that both parties gain or receive is from the contact is generally the consideration, which can be monetary or even a service, object, or anything else that holds value.

Mutuality or intention . Simply put, this term means “meeting of the minds”, which is a phrase that means all the parties involved in the contract intend to create a valid, enforceable agreement.

Legality . In order for a contract to be valid, it must not contain unlawful promises or consideration. A common example of unlawful consideration is a promise to do something that is against the law, such as commit a crime.

Capacity . Capacity means that a person signing the contract has the legal ability to do so. For instance, a minor generally isn’t considered as having the capacity to legally sign a contract.

Generally, a contract is considered binding when it includes all of these elements, and doesn’t contain invalidating issues that could lead to things like undue influence, coercion or duress.

What is a Non-Binding Contract?

A non-binding contract is an agreement that has failed because it is either missing one of the key elements of a valid contract, or the contents of the contract make it so that the law considers it unenforceable.

For instance, a Letter of Intent is often used by parties that want to record some preliminary discussions to make sure that they’re both on the same page so far, but they deliberately don’t want to commit to a binding contract yet.

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What is a trademark?

A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors.

The word “trademark” can refer to both trademarks and service marks. A trademark is used for goods, while a service mark is used for services.

A trademark:

Identifies the source of your goods or services.

Provides legal protection for your brand.

Helps you guard against counterfeiting and fraud.

A common misconception is that having a trademark means you legally own a particular word or phrase and can prevent others from using it. However, you don’t have rights to the word or phrase in general, only to how that word or phrase is used with your specific goods or services.

For example, let’s say you use a logo as a trademark for your small woodworking business to identify and distinguish your goods or services from others in the woodworking field. This doesn’t mean you can stop others from using a similar logo for non-woodworking related goods or services.

Another common misconception is believing that choosing a trademark that merely describes your goods or services is effective. Creative and unique trademarks are more effective and easier to protect. Read more about strong trademarks.

Owning a trademark vs. having a registered trademark

You become a trademark owner as soon as you start using your trademark with your goods or services. You establish rights in your trademark by using it, but those rights are limited, and they only apply to the geographic area in which you’re providing your goods or services. If you want stronger, nationwide rights, you’ll need to apply to register your trademark with us.

You’re not required to register your trademark. However, a registered trademark provides broader rights and protections than an unregistered one.

For example, you use a logo as a trademark for the handmade jewelry you sell at a local farmer’s market. As your business grows and you expand online, you might want more protection for your trademark and decide to apply for federal registration. Registering your trademark with us means that you create nationwide rights in your trademark.

Using the trademark symbols TM, SM, and ®

Every time you use your trademark, you can use a symbol with it. The symbol lets consumers and competitors know you’re claiming the trademark as yours. You can use “TM” for goods or “SM” for services even if you haven’t filed an application to register your trademark.

Once you register your trademark with us, use an ® with the trademark. You may use the registration symbol anywhere around the trademark, although most trademark owners use the symbol in a superscript or subscript manner to the right of the trademark. You may only use the registration symbol with the trademark for the goods or services listed in the federal trademark registration.

Trademark or brand

A brand is a marketing concept that encompasses how people feel about your product or service. Customers associate certain elements with different brands, such as reputation, image, and emotion. For example, a certain brand might have been developed to encourage you to feel confident, calm, or secure.

On the other hand, a federal trademark registration can provide nationwide legal protection for your brand in connection with particular goods or services. It is your choice whether to protect your brand under trademark law. Many business owners choose to protect their brand names for their main or dominant goods or services. You might also choose to protect a slogan or logo for those goods or services, if you have one.

Deciding what you want to protect and to what extent is up to you. You can have a brand, but decide not to protect that brand by registering it as a trademark. If you choose not to register your brand as a trademark, however, anyone could misuse your brand or create a brand so similar to yours that people can’t tell the difference between them. So, even if consumers want to purchase your products or services because they trust your brand’s reputation, that customer might purchase someone else’s by mistake because they can’t tell the difference between the trademarks.

DISCLAIMER: References to particular trademarks, service marks, certification marks, products, services, companies, or organizations appearing on this page are for illustrative and educational purposes only and do not constitute or imply endorsement by the U.S. government, the U.S. Department of Commerce, the U.S. Patent and Trademark Office, or any other federal agency.

All of these topics could fill many threads on their own. However, unlike the previous entries, they don’t necessarily affect all sellers. I’m simply mentioning the ones that I consider most relevant. I’m sure I’m missing 10 more.

1. Proposition 65. California had to add something to the mix.
2. EPA Air Regulations. (Please know that regulations can be Federal and at State level)
3. OTC Model Rule for Consumer Products.
4. DOT (land), IMDG (sea) and IATA (air) transportation restrictions
5. States Right to Know
6. Comprehensive Environmental Response Compensation and Liability Act (CERCLA)
7. Consumer Product Safety Commission (CPSC)
8. Flammable Fabrics Act
9. OSHA Act
10. ASTM Standards