3.  RULE CF 120 REPRESENTATIONS OF VERMONT ORIGIN

Take a look at the final proposed rule, which was approved by the legislature in October, 2005. (You'll also want to look at the FAQ's that accompany the Rule and the Consumer Perception Study conducted by the Center for Rural Studies at UVM; all are linked from the website above.) The approach  focuses on four types of representations:

1. CF 120.05 Qualified Representations of Vermont Origin--deals with claims that are specific as to how the product is a “Vermont” product. Examples of such claims include the following:

  • “Made in Vermont”
  • “Knitted in Vermont”
  • "contains Vermont tomatoes"
Under this section:
  • the claim must be accurate;
  • the qualifying language must be clear and conspicuous and in close proximity to the name Vermont; and
  • the term "Made in Vermont" means that the item was "last substantially transformed in Vermont into a new and different item, with a name, character or use distinct from that of the ingredients or components from which it was transformed."

2. CF 120.07 Company Location--deals with the problem of companies using Vermont addresses when there is a minimal connection to the state. In order to use a Vermont address, the company must be "based in  Vermont." A company is "based in Vermont" if it "discharges substantial functions in Vermont."  According to the rule, "substantial functions" do not include activities such as "original development of the goods or services, mail handling or banking, or the presence of sales, distribution or similar staff alone."

3. CF 120.06  Company Names--addresses the problem of businesses that use the word “Vermont” in their company or trade names but whose products are not "Vermont products" as defined in the rule (and discussed below). For example, under what circumstances can a company call itself the Vermont Apple Cider Company?

The rule prohibits use of a company name that includes the word "Vermont" in close association with a product that is not a "Vermont product" unless certain disclosures are made:
  • if the company is not based in Vermont, that fact must be disclosed
  • if the product was not made in Vermont, the geographic area where it was made must be disclosed (e.g., "Made in Ohio").
  • if the product is required by the definition of "Vermont product" to have a primary ingredient that comes from Vermont but that ingredient comes from outside Vermont, the geographic area where the ingredient comes from must be disclosed (e.g, Made from New England Apples").

So, a company can call itself the Vermont Apple Cider Company if it's based in Vermont, turns the apples into cider in Vermont, and 75% or more of the apples are grown in Vermont. However, it need not meet any of those restrictions as long as it conspicuously discloses accurate information.

4. CF 120.04 Unqualified Representations of Vermont Origin--deals with claims where, unlike "qualified" claims, the connections to Vermont are not spelled out (e.g., "Vermont cheddar cheese").  One must first determine whether whether the product is a "Vermont product." If it is not, then an unqualified claim of Vermont origin cannot be used.

A product is a "Vermont product" if:

  • if a company name is used, it is "based in Vermont"
  • if substantially transformed, the product is made in Vermont
  • the products' primary or prominently identified ingredient comes from Vermont; this third requirement only applies in three types of cases
    • products that do not undergo substantial transformation (e.g., milk or water)
    • products with one primary ingredient commonly known to consumers (cider and apples; cheese and milk);
    • products for which the word "Vermont" is proximately used to describe a specific ingredient (e.g., "Vermont blueberry jam")
A couple of other aspects of the rule worth noting include:
  • The rule says nothing about slogans that use the word "Vermont" (e.g., "A taste of Vermont"). Such statements would be analyzed under existing standards of deception.
  • Geographic terms such as "Green Mountain" and "Lake Champlain" are not covered by the rule (though they were covered in earlier drafts).
  • A product is not a "primary ingredient" if it is not "indigenous" (i.e., commonly grown in Vermont, even if not in substantial commercial quantities); examples would include cocoa and sugar.
Something to think about: If a company sold a product labeled “Vermont Corn Chips,” what would this rule require in terms of where the corn came from and where it was made into chips?