On January 18, 2022, the Federal Trade Commission announced that it has taken action against Instant Brands, manufacturer of Pyrex-brand kitchen and home products, for alleged false claims that its glass measuring cups were made in the United States during a time some measuring cups were purportedly imported from China.
The FTC’s proposed order against Instant Brands would stop the company from making deceptive claims about products being “Made in USA” and require them to pay a monetary judgment.
“Consumers rely on marketers to make truthful ‘Made in USA’ claims,” said FTC attorney Samuel Levine, Director of the FTC’s Bureau of Consumer Protection. “If marketers move their manufacturing outside the United States, even temporarily, they must update their advertising to make it accurate.”
According to the FTC’s complaint, Instant Brands faced increased demand for its glass measuring cups in the early days of the COVID-19 pandemic, when consumer interest in home baking spiked. Pyrex has long used the U.S. origin of its products as a selling point. By early 2021, the company was not able to meet the demand for certain measuring cup sets sold on Amazon with cups produced in the United States. From March 2021 to May 2022, Instant Brands produced some Pyrex cups in China.
When the production shifted to China, the company allegedly continued to market the Chinese-made products on Amazon as “Made in USA,” despite the cups themselves being marked “Made in China.” While the Chinese cups were being sold the company also continued its marketing that implied all Pyrex cups were of U.S. origin, with claims about the company’s “made in the USA heritage,” and that its products were “American as Apple Pie,” according to the FTC.
All told, more than 110,000 units of the Chinese-made measuring cup sets were allegedly sold to U.S. consumers as being “Made in USA.”
The FTC’s order against Instant Brands, which the company has agreed to, includes a number of requirements about the claims they make:
- Restriction on unqualified claims: The company will be prohibited from making unqualified U.S.-origin claims for any product, unless it can show that the product’s final assembly or processing—and all significant processing—takes place in the U.S., and that all or virtually all ingredients or components of the product are made and sourced in the U.S.
- Requirement for qualified claims: The company is required to include in any qualified Made in USA claims a clear and conspicuous disclosure about the extent to which the product contains foreign parts, ingredients or components, or processing.
- Requirement for assembly claims: The company must also to ensure, when claiming a product is assembled in the U.S., that it is last substantially transformed in the U.S., its principal assembly takes place in the U.S., and U.S. assembly operations are substantial.
The order also requires Instant Brands to pay a $129,416 judgment.
The FTC is committed to ensuring that “Made in USA” claims are truthful. Consult an experienced FTC defense lawyer and advertising compliance counselor to ensure that U.S. origin claims are effective and permit you to marketing safely online.
The FTC’s Enforcement Policy Statement on U.S. Origin Claims provides guidance on making non-deceptive “Made in USA” claims. In addition, the FTC recently finalized its Made in USA Labeling Rule, which went into effect on Aug. 13, 2021.
Companies that violate the Rule from that date forward may be subject to civil penalties.
Takeaway: The lesson of the Pyrex case is to make sure manufacturing processes measure up to Made in USA express and implied representations. If there are changes to your supply chain – even temporary ones – update marketing materials to avoid deception.
Richard B. Newman is a leading FTC defense lawyer at Hinch Newman LLP. Follow FTC defense attorney on National Law Review.
Informational purposes only. Not legal advice. May be considered attorney advertising.
