Letter from Hampton Newsome, Staff Attorney, Division of Enforcement, Bureau of Consumer Protection

Bureau of Consumer Protection
Division of Enforcement
Hampton Newsome
Direct Dial: (202) 326-2889
Fax: (202) 326-2558
Email: hnewsome@ftc.gov
Matt Sigler
Technical Director
UNITED STATES OF AMERICA_
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580
April28, 2014
Plumbing Manufacturers International
1921 Rohlwing Road- Unit G
Rolling Meadows, IL 60008
Dear Mr. Sigler:
Department of Energy (DOE) staff has informed Plumbing Manufacturers International's
(PMI's) concerns about water use representations for dual-flush water closets. Specifically, you
have raised questions about whether manufacturers may make dual-flush volume disclosures not
specifically generated by DOE's test procedure. As discussed below, in the FTC staffs view,
manufacturers may provide such information as long as the representations are not deceptive and
otherwise comply with the provisions of the Energy Policy and Conservation Act (EPCA).
Background
Dual-flush water closets have two water use settings: a "full-flush mode" and a "reduced
flush mode." Like other plumbing products, these products must meet DOE's water
conservations standards (10 CFR 430.32(q)) (e.g., 1.6 gallons::-per-flush in full-flush mode). To
demonstrate compliance, manufacturers must test their models pursuant to DOE's test
procedures (1 0 CFR Part 430, subpart B, appendix T). For dual-flush water closets, these
procedures provide a method for manufacturers to measure both full-flush and reduced-flush
volumes "in accordance with the test requirements specified in section 7 .4, Water Consumption
Test, of ASME A112.19.2-2008."
In the marketplace, manufacturers and other sellers routinely describe the performance of
their dual-flush models using a weighted average (i.e., one full and two reduced flushes). The
DOE test procedure makes no mention of this weighted average disclosure. 	However, various
state and federal agencies (e.g., the Environmental Protection Agency's Water Sense Program
and the State of California) use this formula as the primary tool for demonstrating compliance
with their water efficiency programs. 	In addition, voluntary consensus standards adopted by the
plumbingindustry (see section 7.4 of ASME A112.19.2) use the same formula. 	For several
years, manufacturers have disclosed the weighted average on specification sheets, packaging,
installation guides, use and care manuals, packaging, tip sheets, websites, and other media for

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dual-flush water closets.
Representations under EPCA
Under EPCA (42 U.S.C. 6293(c)), manufacturers cannot make water use claims for a
product covered by DOE's standards and test procedures "unless such pr~duct has been tested in
accordance with such test procedure and such representation fairly discloses the results of such
testing." A violation of this restriction constitutes an "unfair or deceptive act or practice" under
the Federal Trade Commission Act ("FTC Act"). 1 In essence, this requirement promotes
uniformity in water use claims and helps consumers make meaningful comparisons of competing
plumbing products. 2 However, EPCA does not prohibit marketers from disseminating truthful,
substantiated water information derived from sources other than the DOE tests if that
information is not otherwise unfair or deceptive.
Representations for Dual-Flush Water Closets
Although not established by the DOE test, truthful weighted dual-flush ratings can
provide useful information for consumers and others. Indeed, as noted above, certain state and
federal agencies use this information for their programs. Without evidence that weighted dual-
flush ratings are categorically unfair or deceptive, FTC staff believes that there is no basis for a
blanket prohibition against disclosing these averages.
Although the use of weighted dual-flush ratings generally is permissible, manufacturers
and other marketers should exercise care in how they explain and disseminate these ratings to
avoid deception. If marketers fail to adequately explain these ratings, they risk blurring the
distinction between the dual-flush average rating (e.g., "average 1.28 gpf') and the maximum
flush volume generated by the DOE requirements (e.g., "1.6 gpf'). In addition, in the absence of
adequate explanation of the weighted dual-flush rating, consumers may not understand that the
average is weighted toward lower flush volume. Accordingly, FTC staff recommends that, if
marketers choose to disclose weighted average flush volumes, they should consider providing
clear and conspicuous disclosures to avoid possible deception. 3 However, without information
about how consumers interpret ave~age flush volume claims, FTC staff cannot provide any more
specific guidance on the content of such disclosures.
* 	* 	* 	* 	*
1 See 42 U.S.C. § 6293(c) (EPCA) and 15 U.S.C. § 45(a)(l) (Section 5 ofthe FTC Act). Section
5 of the FTC Act generally prohibits false and misleading statements made in advertising and
other representations.
2 The scope of representations covered by EPCA Section 6293(c) is broad. In the staffs view,
the provision covers not only representations made in conventional advertising but also
information provided in directories, reports, catalogs, and other publications not necessarily
intended for end-use consumers. Because EPCA covers any water-related representations, the
coverage of this section is not dependent on whether representations are made directly to
''consumers.''
3 For ratings marked on the products themselves, manufacturers should also consider whether
enough space exists to adequately explain average flush volume disclosures.

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The views expressed in this letter are those of FTC staff assigned to enforce the
Commission's Energy Labeling Rule (16 C.F.R. Part 305). In accordance with Section 1.3(c) of
the Commission's Rules of Practice and Procedure, 16 CFR § 1.3(c), this is a staff opinion only
and has not been reviewed or approved by the Commission or by any individual Commissioner.
The advice provided in this letter is not binding upon the Commission and is given without
prejudice to the right of the Commission later to rescind the advice and, when appropriate, to
commence an enforcement proceeding. In conformance with Section 1.4 of the Commission's
Rules of Practice, 16 CFR § 1.4, this letter is being placed on the public record. If you have any
further questions, please contact me at (202) 326-2889.