New ADA Rules In Effect

The compliance date for the revised 2010 ADA Standards for Accessible Design recently passed on March 15, 2012.  The new standard applies to new construction and remodels begun after that date.  This is the first overall update since the 1991 standards.

The ADA standards have a far reaching impact on many building products, including doors, paving, cabinets, countertops, lighting, hand rails, plumbing fixtures, toilet room accessories -- almost anything that someone in a building can actually touch or see.

The standards may also impact your own place of business and how you provide customer service.

Some requirements have been beefed up, others have been backed off. An article in the current issue of Landscape Architecture Magazine details some of the changes that affect exterior design, for example.  Accessible parking spaces in very large parking lots will now need a higher percentage (1 in 6) to be van-accessible.  By contrast, Section 705, the requirement for tactile warning devices (truncated domes - that small field of yellow bumps that have been appearing on curb-cuts and at the edges of parking lots, which warn visually-impaired pedestrians that they are about to walk into traffic)  now omits any mention of curb cuts or parking lots.  It only states a requirement for platform edges.

Note that ADA is only one of several sets of Federal standards on accessibility, and states and municipalities may have other requirements.

For more information, visit www.ada.gov or contact Chusid Associates.

Triangle Fire Legacy

March 25, 2011 marks the 100th anniversary of the Triangle Factory Fire in New York City that killed 146 workers. This tragic event focused attention on fire safety in construction, and accelerated the acceptance of tighter building codes and life-safety regulations.

The Fire illustrates how disasters are frequently the progenitor of new construction technologies. Reforms sparked by the incident led to mandatory usage of many building products we now take for granted, including:

• Panic bars on exit doors.
• Automatic fire sprinklers.
• Fire alarm systems.
• Fire-resistant glass at egress paths.

This cause and effect relationship continues: Environmental disasters spawn sustainable construction. Hurricanes bring demands for airborne missile testing of wall systems. And floods inundate us with innovation.

The only way to redeem a tragedy is to learn from it.

"Atmospheric Rivers" and Architecture

Q. What would happen in California if it rained for 40 days and 40 nights?

A. Massive flooding, landslides, and devastation exceeding that of the largest earthquakes predicted in the state.

This is not an idle concern. Such a storm occurred in 1861-1862 producing massive damage and bankrupting the state. And similar but smaller events have happened since then.

Relatively new scientific models say these storms are the result of "Atmospheric Rivers" that transport tropical moisture across the Pacific and throw it at the US West Coast with "firehose-like ferocity," according to the National Oceanic and Atmospheric Administration.

What will this mean to building construction once regulators, insurance companies, and mortgage lenders start factoring these risks into equations?

Along the Eastern Sea Board and the Gulf Coast, and near major rivers in the Midwest, flood resistant construction is already of concerns, and hurricane resistance is already required in South Florida and other vulnerable jurisdictions. In the decades to come, flood-resistant architecture is likely to become an even more significant factor in design and construction, and to become a factor in areas not previously thought of as flood-prone.

Flooding from atmospheric rivers is likely to be conflated with flooding predicted to accompany climate change, including: inundation of coastal areas, changes in precipitation patterns, and increased intensity of hurricanes and tropical storms. Katrina and recent flooding in Australia suggests the potential scale of the widespread damage that may occur, and emergency management agencies and other regulatory bodies are starting to take note.

This focus on flooding is ironic, because another significant trend in architecture is increased emphasis on water conservation, and severe water shortages are prognosticated in many parts of the world as a consequence of climate change. 

As public concerns about atmospheric rivers grows, possible impacts on construction and building products include:

• The risks of flooding, landslides, or other flood-related damage will lead to new restrictions against building on vulnerable sites.
• New engineering standard will be required for paving, foundations, and anything constructed on the ground to strengthen structures against supersaturation of soils.
• Pipelines will have to be designed to resist buoyancy, and other utilities to resist damage due to excessive water pressure.
• Building envelopes will be required to have increased resistance to wind-driven rain.
• Demands on below grade waterproofing will be increased.
• Flood barriers will receive increased consideration to prevent flooding water from entering buildings.
• Structural designs will consider storm surge-resistance, even in areas not in traditional flood plains.
• Demand will increase for building materials that will resist water damage and the mold that can grow on wet materials.
• Increased construction on stilts will create opportunities for new types of framing systems, soffits, and ways to deliver services into elevated structures.
• More construction on landfill.
• Et cetera.

There may also be new opportunities for companies or organizations that pre-position materials and systems for rapid deployment after a disaster.

Without trying to be macabre, some building product manufactures may see a silver lining inside these storm clouds. I encourage you to join what is almost sure to be a national discussion about these risks, and to give them consideration in your long-term marketing strategy.

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Australia, reeling from massive floods in 2011 and recent years, is already considering moves like those listed above.

Consider this report, for example,

THIS is a Gold Coast developer's possible solution to Queensland's flooding problem -- mini-suburbs on stilts.

Communities on concrete pylons -- roads, houses and all -- could be the way of the future, with Premier Anna Bligh saying the State Government will consider houses on stilts as way to stop homes going under in a flood.

The Gold Coast could be home to one of the first ''suburbs on stilts'' after a court cleared the way for a Merrimac development late last year.

Fire Safety is now a Green Issue

My associate, Aaron Chusid, is fond of saying: "The green building movement is over; it won. We don't talk about a 'fire-safe building movement' anymore because fire-resistive design has become a regular part of construction. We have to start discussing sustainable design in the same way."

Aaron's insights may be a bit premature, because a new report by the National Association of State Fire Marshals (NASFM) makes it clear that fire safety is also a green building issue.

Their report, titled Fire Safety and Green Buildings - Bridging the Gap is a free download. I recommend it as required reading for all building product marketing executives during their midwinter break. It is chock-full of issues and challenges to inspire fresh marketing strategies for the new year.

It points out that a single-attribute approach to sustainable product selection can produce unintended fire hazards. For example:

• Engineered wood systems may make efficient use of forest resources, but they may not provide the same fire safety.
• Photovoltaic panels on a roof provide renewable energy, but they can be a hazard to fire fighters.
• Some insulations with excellent thermal resistance also generate smoke that  hinders fire fighting.
• Vegetative roofs have lots of environmental advantages, but shouldn't prevent fire department access.

Reading this report may help you identify threats or opportunities in the changing marketplace. One of Chusid Associates' clients, for example, is launching a new marketing initiative stimulated by the report. Their door opener is that the NASFM has raised concerns about the fire safety of products in its niche. This prepares the way for demonstrating that the firm has already solved the problem, allowing its customers to be both green and fire safe.

Trade Association Antitrust Guidelines

When called upon to participate in trade associations, employees and agents of building product manufacturers must understand and comply with antitrust laws.

Antitrust laws prohibit firms in the same industry from conspiring to restrain trade. There are potential civil and criminal penalties for violations under United States antitrust laws. Potential consequences of violating or appearing to violate antitrust laws can be severe for trade associations, member companies, and their employees.

When attending trade association meetings and other activities, you must follow general guidelines in order to avoid violations of antitrust laws.

Topics that must be avoided include:

1. Pricing: This includes current or future prices or costs; what is a fair profit level; increases or decreases in price; standardizing or stabilizing prices; and pricing procedures.
2. Sales Territories: Dividing customers or allocating sales territories or markets.
3. Limiting Supply: Agreements encouraging or discouraging members from purchasing equipment, supplies, or raw materials from any supplier or from dealing with any supplier or restricting the volume of goods produced or made available for sale.
4. Boycotts: Restricting the purchasing or dealing with particular outsiders.
5. Discussions concerning specific agreements or disputes,  past or present, between members.

Administrative guidelines include the following recommendations:

Meetings must have an agenda that should be strictly followed. Minutes of each meeting should be prepared. The minutes should accurately reflect the subjects discussed and actions taken at the meetings.

Members should not hold informal gatherings. No substantive discussions should take place outside official meetings.

Association membership should not be arbitrarily awarded. It is assumed that members derive an economic benefit from being association members; therefore denial of membership to an otherwise qualified applicant can be seen as restraint on trade since it might limit the ability of the applicant to compete.

Specifications or standards developed shall not be based on any anticompetitive purpose. Adherence to specifications or standards shall be voluntary.

Please note that these guidelines are recommendations and are not comprehensive. Legal counsel should be contacted when potential antitrust issues arise.

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Chusid Associates has worked with many building industry trade associations to develop promotional, technical, standards writing, educational, and marketing programs. We also serve on industry committees to serve our clients' interests. Contact Michael Chusid if we can be of assistance to you.

Cement Emissions and Social Justice

The U.S. Environmental Protection Agency (EPA) is issuing final rules that will protect Americans' health by cutting emissions of mercury, particle pollution and other harmful pollutants from Portland cement manufacturing, the third-largest source of mercury air emissions in the United States. The rules are expected to yield $7 to $19 in public health benefits for every dollar in costs. Mercury can damage children's developing brains, and particle pollution is linked to a wide variety of serious health effects, including aggravated asthma, irregular heartbeat, heart attacks, and premature death in people with heart and lung disease.

I have a personal connection to this news item:

A friend of mine did her Ph.D. dissertation monitoring emissions from cement plants to document their pollution. Plant operators were not cooperative with her research. They would ban her from access to their sites and, if they discovered her setting up monitoring stations downwind, would temporarily modify production to artificially reduce emissions.

Understanding and reducing pollution was only one aspect of her research. Social justice was another. Cement plants, she explained, are usually located in "economically disadvantaged" neighborhoods that lacked the resources to oppose the pollution. The children with the least access to medical care, she observed, were the ones bearing the brunt of the toxic emissions from cement plants.

Social justice is fundamental to sustainable construction.  The Hannover Principles, a set of succinct guideposts to sustainable construction puts "human rights" at the top of its list of criteria for green construction.

I am sure the EPA's new guidelines do not satisfy my friend. Still, I salute her work for helping make the EPA's efforts possible.

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Her research is published in the following (emphasis added):

"Wet deposition of mercury within the vicinity of a cement plant before and during cement plant maintenance, Atmospheric Environment (March 2010)

Abstract: Hg species (total mercury, methylmercury, reactive mercury) in precipitation were investigated in the vicinity of the Lehigh Hanson Permanente Cement Plant in the San Francisco Bay Area, CA., USA. Precipitation was collected weekly between November 29, 2007 and March 20, 2008, which included the period in February and March 2008 when cement production was minimized during annual plant maintenance. When the cement plant was operational, the volume weighted mean (VWM) and wet depositional flux for total Hg (HgT) were 6.7 and 5.8 times higher, respectively, compared to a control site located 3.5 km east of the cement plant. In February and March, when cement plant operations were minimized, levels were approximately equal at both sites (the ratio for both parameters was 1.1). Due to the close proximity between the two sites, meteorological conditions (e.g., precipitation levels, wind direction) were similar, and therefore higher VWM HgT levels and HgT deposition likely reflected increased Hg emissions from the cement plant. Methylmercury (MeHg) and reactive Hg (Hg(II)) were also measured; compared to the control site, the VWM for MeHg was lower at the cement plant (the ratio ¼ 0.75) and the VWM for Hg(II) was slightly higher (ratio ¼ 1.2), which indicated the cement plant was not likely a significant source of these Hg species to the watershed.


"Evidence for short-range transport of atmospheric mercury to a rural, inland site," Atmospheric Environment (March 2010)

Abstract: Atmospheric mercury (Hg) species, including gaseous elemental mercury (GEM), reactive gaseous mercury (RGM) and particulate-bound mercury (Hgp), were monitored near three sites, including a cement plant (monitored in 2007 and 2008), an urban site and a rural site (both monitored in 2005 and 2008). Although the cement plant was a significant source of Hg emissions (for 2008, GEM: 2.20 =/- 1.39 ng m-3, RGM: 25.2 =/- 52.8 pg m-3, Hgp 80.8 =/- 283 pg m-3), average GEM levels and daytime average dry depositional RGM flux were highest at the rural site, when all three sites were monitored sequentially in 2008 (rural site, GEM: 2.37 =/- 1.26 ng m-3, daytime RGM flux: 29 =/- 40 ng m-2 day-1). Photochemical conversion of GEM was not the primary RGM source, as highest net RGM gains (75.9 pg m-3, 99.0 pg m-3, 149 m-3) occurred within 3.0-5.3 h, while the theoretical time required was 14e23 h. Instead, simultaneous peaks in RGM, Hgp, ozone (O3), nitrogen oxides, and sulfur dioxide in the late afternoon suggested short-range transport of RGM from the urban center to the rural site. The rural site was located more inland, where the average water vapor mixing ratio was lower compared to the other two sites (in 2008, rural: 5.6 =/- 1.4 g kg-1, urban: 9.0 =/- 1.1 g kg-1, cement plant: 8.3 =/- 2.2 g kg-1). Together, these findings suggested short-range transport of O3 from an urban area contributed to higher RGM deposition at the rural site, while drier conditions helped sustain elevated RGM levels. Results suggested less urbanized environments may be equally or perhaps more impacted by industrial atmospheric Hg emissions, compared to the urban areas from where Hg emissions originated.

Green Code Asking for Comment

We've been keeping an eye on the ICC's development of the International Green Construction Code (IGCC). A new version was released March 15, and the ICC is soliciting feedback and support.

Click here to visit the IGCC download and comment page. A free registration is required.

For building product manufacturers, it's very important to understand and anticipate the impact this model code may have on your products. (See our post "How Will the International Green Construction Code Affect Your Product?" for background.) In the current edition, the code is defined enough that you can easily see the intent, but still has many reviews ahead of it. If you haven't yet read it, now may be the perfect time.

Comments on the current version are due May 14. A public hearing will be held in Chicago in August. The final version is scheduled for publication in early 2012.

Market Movers Discuss Green Products

Recently, three thought leaders in sustainable design discussed green products. The American Society of Landscape Architects' blog "The Dirt", reports on the conversation.

How should ”green” values in building construction products be measured – should firms look at the carbon miles traveled by product components, or total GHG emissions? How should green be defined — is it about energy efficient manufacturing processes, or eliminating toxicity? How do we avoid green washing? These questions were asked in the National Building Museum’s latest For the Greener Good lecture on “Greening the Supply Chain.”

Kirsten Richie, Director of Sustainability, Gensler, Nadav Malin, President, BuildingGreen and Gwen Davidow, Director, Corporate Programs, World Environment Center, all provided their thoughts, while Ken Langer, President, Architectural Energy Corporation, moderated the event.

Although the conversation was by no means definitive, all three agreed that certification and regulation are needed to help designers and consumers easily and confidently identify green products. Disclosure by manufacturers also received emphasis.

Richie: Our goal is to ensure every building product is green, so you won’t even need to examine the details. You’ll just know. However, this doesn’t exist yet.

A big building project can include 10,000 line items. We can’t check the environmental impact details on every product. We need shortcuts — products need to be certified against standards. You should be able to buy a certain brand and know you are getting a sustainable product.

Davidow: Green needs to be a part of the product. It can’t be a niche product offered among others. Green needs to be embedded into the product. ... Green base lines in products will need to be regulated and certified if we are going to reach green product ubiquity.

Malin: There should be green labeling in construction projects. 3rd party certification is needed. Labels equal regulation.

The most important thing to notice is that the people in the conversation are in a position to make their opinions become reality. Their advocacy for environmental declaration standards, legislation, and life cycle assessments carry real weight, because they represent owners, designers, and industry publications. Together, they're moving markets.

ASHRAE 90.1: Changes afoot

When you're watching the standards and regulations that affect your products, you're ahead of the changes, and possibly ahead of the competition, too. If your products affect building envelopes and systems, you'll want to stay abreast of ASHRAE 90.1 and the changes being proposed for the 2010 edition. Remember, too, that ASHRAE 90.1 is a standard for both building codes and LEED rating systems, so changes to it have far-reaching consequences for many projects.

Hot topics for our clients:

• Performance requirements for air leakage of the opaque envelope (Addendum bf)
• New 40 percent window wall area path within the Prescriptive Tables (Addendum cx)
• Several lighting control provisions (Addenda cd, ce, cn, cu, and cz)

Each addendum has its own draft on ASHRAE's web site, so you may want to start at Eco-Intel for the summaries.

Tax Benefits for Designers

Tax benefits can be a powerful tool for promoting certain building products. Chusid Associates, for example, has worked with producers of demountable partitions and access flooring systems to explain how the accelerated depreciation of these products can create bottom line benefits for a building owner.

The following article, reposted from the Xella (producers of Hebel autoclaved aerated concrete) website, explains a little know tax benefit that can accrue to design professionals:

The Federal tax laws provide a significant tax benefit for designers of energy-efficient commercial buildings for public entities, such as government buildings and public schools. A designer such as an architect, engineer, contractor, environmental consultant or energy services provider who creates the technical specifications can deduct the cost to the public entity of “energy-efficient commercial building property expenditures” up to a cap of $1.80 per square foot of the energy-efficient commercial building property expenditures that are made.[1]

The deduction is allowed in the year in which the property is placed in service and is in lieu of depreciating the amounts qualifying for the deduction over 39 years.[2] .The tax laws define energy-efficient commercial building expenditures as property:

1. Installed on or in any building located in the United States that is within the scope of Standard 90.1-2001 of the American Society of Heating, Refrigerating, and Air Conditioning Engineers and the Illuminating Engineering Society of North America,
2. Installed as part of (i) the interior lighting systems, (ii) the heating, cooling, ventilation, and hot water systems, or (iii) the building envelope, and
3. Certified as being installed as part of a plan designed to reduce the total annual energy and power costs with respect to the interior lighting systems, heating, cooling, ventilation, and hot water systems of the building by 50 percent or more in comparison to a reference building which meets the minimum requirements of Standard 90.1-2001 (as in effect on April 2, 2003).[1]

This deduction generally is available to owners of buildings. However, because the owners public buildings, such as schools and government offices do not generally pay taxes, the tax laws provide a special rule allowing the owners to pass the benefit through to the designer. If there is more than one designer, the governmental owner of the building can allocate the full deduction to one designer that is primarily responsible for the design or, at the owner's discretion, allocate the deduction among several designers. The governmental owner of the public building is not required to include any amount in income on account of the deduction allocated to the designer, but is required to reduce the basis of the property by the amount of the deduction allocated. Note that a person who installs, repairs, or maintains the property is not a designer.[3]

Hebel AAC’s energy-efficient properties help meet their requirement for this tax-deduction credit level. Its unique closed cellular structure and thermal mass contribute to a high R-value and air-tightness, which reduce heating and cooling costs and improve indoor air quality. Buildings using Hebel Autoclaved Aerated Concrete have seen up to a 35 percent decrease in cooling costs.

In the case of a building that does not meet the overall building requirement of a 50-percent energy saving, a partial deduction is allowed with respect to each separate building system: (1) the interior lighting system, (2) the heating, cooling, ventilation and hot water systems, and (3) the building envelope. The maximum allowable deduction is $0.60 per square foot for each separate system.

Case in Point 1: 50% Energy Savings A school spends $200,000 in qualifying costs on a new 100,000 square feet, energy-efficient building using Hebel AAC. 100,000 sq. ft. X $1.80 = $180,000 Tax Deduction to the Designer

Case in Point 2: <50%> Same school as above, yet only the Hebel AAC building envelope qualifies. 100,000 sq. ft. X $.060= $60,000 Tax Deduction to the Designer

Certain certification requirements must be met in order to qualify for the deduction. The IRS has published guidance concerning how to meet these requirements.[4] In general, these calculations must be performed using energy simulation models found in computer software approved in the guidance and not by measuring actual electricity usage. Under this guidance, calculations are made by comparison to a reference building that is based on a building that is located in the same climate zone as the taxpayer's building and is otherwise comparable to the taxpayer's building except that its interior lighting systems, heating, cooling, ventilation, and hot water systems, and building envelope meet the minimum requirements of Standard 90.1-2001. Calculations must be certified by a licensed professional engineer or contractor that is not related to the taxpayer and meets certain other tests.

In determining energy and power cost savings for purposes of partial deduction described above for an energy efficient building envelope, the proposed building is a building that contains the building envelope that has been incorporated, or that the taxpayer plans to incorporate, into the taxpayer's building but that is otherwise identical to the reference building.

The deduction is effective for property placed in service after December 31, 2005 and prior to December 31, 2013.[5]

It may be possible to meet the energy efficiency standards set forth above using Hebel AAC.

Please consult your own tax advisor to determine whether your project can qualify for this significant tax benefit. IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice that may be contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding any penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction(s) or tax-related matter(s) that may be addressed herein.

Notice 2006-52 can be found: http://www.irs.gov/pub/irs-drop/n-06-52.pdf
Notice 2008-40 can be found: http://www.irs.gov/irb/2008-14_IRB/ar12.html
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[1] Code section 179D(d)(4); Notice 2008-40, 2008-14 I.R.B. 725.
[2] Code section 179D.
[3] Notice 2008-40, section 3.
[4] Notice 2006-52, 2006-26 I.R.B. 1175, clarified and amplified, Notice 2008-40.
[5] Code section 179D(h).COMMENT

The specification of a single building product does not, by itself, qualify a project for this tax credit. The credit requires the design of energy efficiency into an overall building project. Still, building product manufacturers can gain from understanding and explaining how their product contributes to the overall result.

Contact Chusid Associates to explore whether this law can benefit your company and to discuss the best way to incorporate it into your marketing program.

ICC releases notes, new version of International Green Construction Code

ICC has released meeting notes for its October work session on the International Green Construction Code (IgCC). Along with the notes, a third version of the code itself is available. These documents mark a halfway point in the development of the new code.

In this version, you'll find new text for the following provisions:

• Bicycle parking requirements
• Heat island mitigation requirements for paving, walls, and roofing
• Special parking for carpool and low-emitting vehicles
• Gypsum panel products
• Steel products
• Moisture control
• Building energy consumption
• Retrofit of existing buildings

Many provisions with placeholders in the code have not yet been developed and are open for the input of interested parties. Masonry, glass, low-emitting vehicles, and life cycle analysis are among the systems that will be addressed in the finished code but that do not yet have clear directions in the draft.

The committee's next meeting is December 15-17, 2009, in Bonita Springs, FL.

FTC Rules about Endorsements

New guidelines from the FTC may have a significant impact on building product marketing communications. Additional analysis will be posted in this blog in the weeks to come:

"For Release: 10/05/2009 (Excerpted Below)

"FTC Publishes Final Guides Governing Endorsements, Testimonials -- Changes Affect Testimonial Advertisements, Bloggers, Celebrity Endorsements

"The Federal Trade Commission today announced that it has approved final revisions to the guidance it gives to advertisers on how to keep their endorsement and testimonial ads in line with the FTC Act.

"The notice incorporates several changes to the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, which address endorsements by consumers, experts, organizations, and celebrities, as well as the disclosure of important connections between advertisers and endorsers. The Guides were last updated in 1980.

"Under the revised Guides, advertisements that feature a consumer and convey his or her experience with a product or service as typical when that is not the case will be required to clearly disclose the results that consumers can generally expect. In contrast to the 1980 version of the Guides – which allowed advertisers to describe unusual results in a testimonial as long as they included a disclaimer such as “results not typical” – the revised Guides no longer contain this safe harbor.

"The revised Guides also add new examples to illustrate the long standing principle that “material connections” (sometimes payments or free products) between advertisers and endorsers – connections that consumers would not expect – must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other “word-of-mouth” marketers. The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service. Likewise, if a company refers in an advertisement to the findings of a research organization that conducted research sponsored by the company, the advertisement must disclose the connection between the advertiser and the research organization. And a paid endorsement – like any other advertisement – is deceptive if it makes false or misleading claims.

"Celebrity endorsers also are addressed in the revised Guides. While the 1980 Guides did not explicitly state that endorsers as well as advertisers could be liable under the FTC Act for statements they make in an endorsement, the revised Guides reflect Commission case law and clearly state that both advertisers and endorsers may be liable for false or unsubstantiated claims made in an endorsement – or for failure to disclose material connections between the advertiser and endorsers. The revised Guides also make it clear that celebrities have a duty to disclose their relationships with advertisers when making endorsements outside the context of traditional ads, such as on talk shows or in social media.

"The Guides are administrative interpretations of the law intended to help advertisers comply with the Federal Trade Commission Act; they are not binding law themselves. In any law enforcement action challenging the allegedly deceptive use of testimonials or endorsements, the Commission would have the burden of proving that the challenged conduct violates the FTC Act."