[Federal Register Volume 75, Number 21 (Tuesday, February 2, 2010)]
[Notices]
[Pages 5322-5324]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-2129]
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FEDERAL TRADE COMMISSION
[File No. 082 3159]
Indoor Tanning Association; Analysis of Proposed Consent Order to
Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed Consent Agreement.
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SUMMARY: The consent agreement in this matter settles alleged
violations of federal law prohibiting unfair or deceptive acts or
practices or unfair methods of competition. The attached Analysis to
Aid Public Comment describes both the allegations in the draft
complaint and the terms of the consent order -- embodied in the consent
agreement -- that would settle these allegations.
DATES: Comments must be received on or before February 26, 2010.
ADDRESSES: Interested parties are invited to submit written comments
electronically or in paper form. Comments should refer to ``Indoor
Tanning Assoc., File No. 082 3159'' to facilitate the organization of
comments. Please note that your comment --
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including your name and your state -- will be placed on the public
record of this proceeding, including on the publicly accessible FTC
website, at (http://www.ftc.gov/os/publiccomments.shtm).
Because comments will be made public, they should not include any
sensitive personal information, such as an individual's Social Security
Number; date of birth; driver's license number or other state
identification number, or foreign country equivalent; passport number;
financial account number; or credit or debit card number. Comments also
should not include any sensitive health information, such as medical
records or other individually identifiable health information. In
addition, comments should not include any ``[t]rade secret or any
commercial or financial information which is obtained from any person
and which is privileged or confidential. . . .,'' as provided in
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and Commission Rule
4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing material for which
confidential treatment is requested must be filed in paper form, must
be clearly labeled ``Confidential,'' and must comply with FTC Rule
4.9(c), 16 CFR 4.9(c).\1\
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\1\ The comment must be accompanied by an explicit request for
confidential treatment, including the factual and legal basis for
the request, and must identify the specific portions of the comment
to be withheld from the public record. The request will be granted
or denied by the Commission's General Counsel, consistent with
applicable law and the public interest. See FTC Rule 4.9(c), 16 CFR
4.9(c).
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Because paper mail addressed to the FTC is subject to delay due to
heightened security screening, please consider submitting your comments
in electronic form. Comments filed in electronic form should be
submitted by using the following weblink: (https://public.commentworks.com/ftc/indoortanningassoc) and following the
instructions on the web-based form. To ensure that the Commission
considers an electronic comment, you must file it on the web-based form
at the weblink: (https://public.commentworks.com/ftc/indoortanningassoc.) If this Notice appears at (http://www.regulations.gov/search/index.jsp), you may also file an electronic
comment through that website. The Commission will consider all comments
that regulations.gov forwards to it. You may also visit the FTC website
at (http://www.ftc.gov/) to read the Notice and the news release
describing it.
A comment filed in paper form should include the ``Indoor Tanning
Assoc., File No. 082 3159'' reference both in the text and on the
envelope, and should be mailed or delivered to the following address:
Federal Trade Commission, Office of the Secretary, Room H-135 (Annex
D), 600 Pennsylvania Avenue, NW, Washington, DC 20580. The FTC is
requesting that any comment filed in paper form be sent by courier or
overnight service, if possible, because U.S. postal mail in the
Washington area and at the Commission is subject to delay due to
heightened security precautions.
The Federal Trade Commission Act (``FTC Act'') and other laws the
Commission administers permit the collection of public comments to
consider and use in this proceeding as appropriate. The Commission will
consider all timely and responsive public comments that it receives,
whether filed in paper or electronic form. Comments received will be
available to the public on the FTC website, to the extent practicable,
at (http://www.ftc.gov/os/publiccomments.shtm). As a matter of
discretion, the Commission makes every effort to remove home contact
information for individuals from the public comments it receives before
placing those comments on the FTC website. More information, including
routine uses permitted by the Privacy Act, may be found in the FTC's
privacy policy, at (http://www.ftc.gov/ftc/privacy.shtm).
FOR FURTHER INFORMATION CONTACT: Janet Evans (202-326-2125), Bureau of
Consumer Protection, 600 Pennsylvania Avenue, NW, Washington, D.C.
20580.
SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Sec. 2.34 the
Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that
the above-captioned consent agreement containing a consent order to
cease and desist, having been filed with and accepted, subject to final
approval, by the Commission, has been placed on the public record for a
period of thirty (30) days. The following Analysis to Aid Public
Comment describes the terms of the consent agreement, and the
allegations in the complaint. An electronic copy of the full text of
the consent agreement package can be obtained from the FTC Home Page
(for January 26, 2010), on the World Wide Web, at (http://www.ftc.gov/os/actions.shtm). A paper copy can be obtained from the FTC Public
Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW, Washington,
D.C. 20580, either in person or by calling (202) 326-2222.
Public comments are invited, and may be filed with the Commission
in either paper or electronic form. All comments should be filed as
prescribed in the ADDRESSES section above, and must be received on or
before the date specified in the DATES section.
Analysis of Agreement Containing Consent Order to Aid Public Comment
The Federal Trade Commission (``FTC'' or ``Commission'') has
accepted, subject to final approval, an agreement containing a consent
order from the Indoor Tanning Association (``respondent''). The
proposed consent order has been placed on the public record for thirty
(30) days for receipt of comments by interested persons. Comments
received during this period will become part of the public record.
After thirty (30) days, the Commission will again review the agreement
and the comments received, and will decide whether it should withdraw
from the agreement or make final the agreement's proposed order.
This matter involves the advertising and promotion of indoor
tanning products and facilities. According to the FTC complaint,
respondent represented, in various advertisements, that tanning,
including indoor tanning, does not increase the risk of skin cancer.
The complaint alleges that this claim is false and unsubstantiated
because tanning, including indoor tanning, increases the risk of skin
cancer, including squamous cell and melanoma skin cancers. Also,
according to the complaint, respondent represented that: tanning,
including indoor tanning, poses no danger; indoor tanning is approved
by the government; and indoor tanning is safer than tanning outdoors
because, in indoor tanning facilities, the amount of ultraviolet light
is monitored and controlled. The FTC complaint alleges that these
claims are false and unsubstantiated.
The FTC complaint further charges that respondent represented that
research shows that vitamin D supplements may harm the body's ability
to fight disease; and that a recent study in the prestigious
Proceedings of the National Academy of Sciences determined that the
risks of not getting enough ultraviolet light far outweigh the
hypothetical risk of skin cancer, that getting a healthy tan produces
vitamin D, and that increased vitamin D has been linked to
significantly decreasing your risk of contracting internal cancers,
such as lung, kidney, or liver cancer. The complaint alleges that these
claims are false and misleading. The FTC complaint also alleges that
respondent represented that tanning causes the skin to generate vitamin
D and has health benefits, but that respondent failed to disclose facts
that would be material to
[[Page 5324]]
consumers in their purchase and use of indoor tanning services,
specifically, that consumers can increase their vitamin D levels
through ultraviolet levels lower than the amount needed to get a tan,
and that ultraviolet radiation can injure the eyes and increases the
risk of skin cancer. The complaint alleges that respondent's failure to
disclose these facts, in light of the representation made, is a
deceptive practice. Finally, the complaint alleges that respondent
provided to others the means and instrumentalities to engage in
deceptive acts or practices.
The proposed consent order contains provisions designed to prevent
respondent from engaging in similar acts or practices in the future.
The order covers representations made in connection with the
manufacturing, labeling, advertising, promotion, offering for sale,
sale, or distribution of any covered product or service, in or
affecting commerce. It does not cover representations made in non-
commercial settings or contexts, such as communications to legislative
or executive bodies. The order defines a covered product or service as
any ultraviolet lamp or sunlamp product, as defined in federal
regulation 21 C.F.R. Sec. 1040.20, or any commercial facility where
consumers may use ultraviolet lamps or sunlamp products.
Part I of the order prohibits respondent from making the following
representations: tanning, including indoor tanning, does not increase
the risk of skin cancer; tanning, including indoor tanning, is safe or
poses no danger; indoor tanning is approved by the government; and
indoor tanning is safer than tanning outdoors because in indoor tanning
facilities, the amount of ultraviolet light is monitored and
controlled. The ban on representations that tanning, including indoor
tanning, is safe, is fencing-in relief. Part II of the order prohibits
respondent from misrepresenting (1) that research shows that vitamin D
supplements may harm the body's ability to fight disease and (2) that a
study in the Proceedings of the National Academy of Sciences
determined: (a) that sun exposure does not cause skin cancer or
melanoma, or that the risk of such cancer is only hypothetical; (b)
that getting a tan is healthy; (c) that the risks of not getting enough
ultraviolet light far outweigh the risk of skin cancer; or (d) that
vitamin D has been linked to significantly decreasing the risk of
contracting lung, kidney, or liver cancer.
Part III prohibits respondent from making any representation about
the safety, health-related efficacy or performance, or health-related
risks or benefits, of any covered product or service; or about the
sources, performance, efficacy, or health-related risks or benefits of
vitamin D; unless the representation is non-misleading, and, at the
time it is made, respondent possesses and relies upon competent and
reliable scientific evidence that is sufficient in quality and quantity
based on standards generally accepted in the relevant scientific fields
to substantiate that the representation is true. For the purposes of
the order, competent and reliable scientific evidence is defined as
tests, analyses, research, studies, or other evidence that have been
conducted and evaluated in an objective manner by qualified persons,
that are generally accepted in the profession to yield accurate and
reliable results, and whose results are consistent with the body of
reliable scientific evidence relevant to the representation. Part IV of
the order prohibits respondent from misrepresenting the existence,
contents, validity, results, conclusions, or interpretations of any
test, study, survey, or research.
Part V of the order is a disclosure provision. It prohibits
respondent from making any representation about the safety or health
benefits of any covered product or service unless it makes the
following disclosure, clearly and conspicuously, and in close proximity
to the representation: ``NOTICE: Exposure to ultraviolet radiation may
increase the likelihood of developing skin cancer and can cause serious
eye injury.'' In the event, however, that respondent represents that
exposure to ultraviolet radiation produces vitamin D in the body, or
otherwise about the effectiveness or usefulness of such product for
generation of vitamin D, the required disclosure shall be as follows:
``NOTICE: You do not need to become tan for your skin to make vitamin
D. Exposure to ultraviolet radiation may increase the likelihood of
developing skin cancer and can cause serious eye injury.''
Part VI of the order prohibits respondent from providing to any
other person or entity any means or instrumentalities that contain any
representation prohibited by the order. Part VII requires respondent to
send a notice about the FTC's law enforcement action to all of its
members, and all other entities to which it provided point-of-sale
advertising on or after January 1, 2008; the required notice is
attached to the order as Attachment A.
Parts VIII, IX, X, and XI of the consent order require respondent
to keep copies of relevant advertisements and materials substantiating
claims made in the advertisements; to provide copies of the order to
its personnel; to notify the Commission of changes in corporate
structure that might affect compliance obligations under the order; and
to file compliance reports with the Commission. Part XII provides that
the order will terminate after twenty (20) years, with certain
exceptions.
The purpose of this analysis is to facilitate public comment on the
proposed order, and it is not intended to constitute an official
interpretation of the agreement and proposed order or to modify in any
way their terms.
By direction of the Commission.
Donald S. Clark
Secretary.
[FR Doc. 2010-2129 Filed 2-1-10; 2:45 pm]
BILLING CODE 6750-01-S