As Made in USA historians recall, it was, in part, a proposed FTC consent order against the New Balance shoe company that prompted the FTC to considering loosening, but ultimately retaining, its policy on Made in USA claims. As a result, the FTC's current view remains that "Made in USA" means essentially that all or virtually all of the costs of manufacturing the product are domestic in origin.
Now New Balance is using the notion of a disclaimer to try to redefine the term. New Balance communicates on its website and in various other promotional materials that when it uses the "Made in USA" claim, it means that at least 70% of the value is domestic. Given that the FTC in its prior review rejected a 75% safe harbor, it seems pretty clear that New Balance's definition does not comport with the FTC's definition. The question, though, is can the company use a different definition as long as it clearly communicates to consumers what that definition is? As the FTC's deception guides make clear, that may be difficult to do when the claim is pretty cut and dry. You may, for instance, have trouble telling consumers that you're defining black to mean white and white to mean black. But when the claim is more ambiguous, such as "Made in USA" and really depends solely upon how consumers perceive it, perhaps redefining such a claim might not be misleading.
Are there risks? Of course, any attempt at redefinition would have to be clear and prominent so that consumers really get it. Second, competitors or the FTC might try to argue that unless you explicitly tell consumers that you are using the term in something other than its "typical" meaning, consumers may be mislead into believing that your "Made in USA" claim is the equivalent of "Made in USA" claims made by other companies which, in fact, comply with the more stringent FTC definition. Of course, if the Chamber of Commerce launched a campaign on behalf of manufacturers generally to "educate" consumers as to how industry intends to use the term could that redefine the term more generally? Perhaps so, if the meaning of "Made in USA' depends upon consumer perception and consumer perception is altered by whatever fashion then perhaps the claim is altered as well.
Will the FTC challenge New Balance yet again? If it happens we'll let you know.