Ground Rules for Made In USA Claims
Manufacturers often desire to use the phrase “Made in USA” because it can have a great impact on customer perception. However, it is very often the case that some product and labor inputs come from foreign supply chains. This sort of marking and advertising, therefore, requires compliance with a range of domestic US laws. Depending on the specific factual circumstances at play with each product, a simple “Made in USA” claim could be deemed misleading and lead to financial exposure and reputational harm. The heart of this issue often lies with the confusing intersection of advertising and customs laws.
The role of the Federal Trade Commission
The Federal Trade Commission (FTC) has principal jurisdiction over what tends to be understood as Made in USA claims and is free to exercise its jurisdiction by enforcing the FTC Act against unlawful uses of Made in USA or similar claims, along with deceptive claims of foreign origin (to the extent not otherwise regulated by the U.S. Customs and Border Protection (CBP)). Naturally, origin claims intersect with the country of origin markings required under customs laws, over which CBP has jurisdiction. Indeed, all products of foreign origin that are imported into the United States must be marked with the name of the foreign country of origin to place the consumer on notice of the foreign origin.
Thus, for both, the key from a risk perspective is to understand how to maximize the potential of a claim while staying within the boundaries of what the FTC or CBP, a consumer, or a competitor would find to be truthful. This article summarizes the legal tests and common analysis that the FTC, CBP, and U.S. Court of International Trade apply when examining various Made In USA and foreign origin claims.
Jonathan Todd is a Partner in the Transportation & Logistics practice at Benesch, Friedlander, Coplan and Aronoff LLP and a member of the Ohio District Export Council.
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