Federal Register, Volume 77 Issue 41 (Thursday, March 1, 2012)

[Federal Register Volume 77, Number 41 (Thursday, March 1, 2012)]
[Notices]
[Pages 12586-12588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4999]

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FEDERAL TRADE COMMISSION

[File No. 112 3001]

Serious Energy, Inc.; 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 March 23, 2012.

ADDRESSES: Interested parties may file a comment online or on paper, by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Write ``Serious Energy, File
No. 112 3001'' on your comment, and file your comment online at https://ftcpublic.commentworks.com/ftc/seriousenergyconsent, by following the
instructions on the web-based form. If you prefer to file your comment
on paper, mail or deliver your comment to the following address:
Federal Trade Commission, Office of the Secretary, Room H-113 (Annex
D), 600 Pennsylvania Avenue NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: James A. Kohm (202-326-2640) or Joshua
S. Millard (202-326-2454), FTC, Bureau of Consumer Protection, 600
Pennsylvania Avenue NW., Washington, DC 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

[[Page 12587]]

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 February
22, 2012), 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, DC
20580, either in person or by calling (202) 326-2222.
You can file a comment online or on paper. For the Commission to
consider your comment, we must receive it on or before March 23, 2012.
Write ``Serious Energy, File No. 112 3001'' on your comment. Your
comment--including your name and your state--will be placed on the
public record of this proceeding, including, to the extent practicable,
on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to
remove individuals= home contact information from comments before
placing them on the Commission Web site.
Because your comment will be made public, you are solely
responsible for making sure that your comment does not include any
sensitive personal information, like anyone'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. You are also solely
responsible for making sure that your comment does not include any
sensitive health information, like medical records or other
individually identifiable health information. In addition, do 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 FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do
not include competitively sensitive information such as costs, sales
statistics, inventories, formulas, patterns, devices, manufacturing
processes, or customer names.
If you want the Commission to give your comment confidential
treatment, you must file it in paper form, with a request for
confidential treatment, and you have to follow the procedure explained
in FTC Rule 4.9(c), 16 CFR 4.9(c).\1\ Your comment will be kept
confidential only if the FTC General Counsel, in his or her sole
discretion, grants your request in accordance with the law and the
public interest.
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\1\ In particular, the written request for confidential
treatment that accompanies the comment must include the factual and
legal basis for the request, and must identify the specific portions
of the comment to be withheld from the public record. See FTC Rule
4.9(c), 16 CFR 4.9(c).
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Postal mail addressed to the Commission is subject to delay due to
heightened security screening. As a result, we encourage you to submit
your comments online. To make sure that the Commission considers your
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/seriousenergyconsent by following the instructions on the web-based
form. If this Notice appears at http://www.regulations.gov/#!home, you
also may file a comment through that Web site.
If you file your comment on paper, write ``Serious Energy, File No.
112 3001'' on your comment and on the envelope, and mail or deliver it
to the following address: Federal Trade Commission, Office of the
Secretary, Room H-113 (Annex D), 600 Pennsylvania Avenue NW.,
Washington, DC 20580. If possible, submit your paper comment to the
Commission by courier or overnight service.
Visit the Commission Web site at http://www.ftc.gov to read this
Notice and the news release describing it. The FTC Act and other laws
that 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 on or before March 23, 2012. You can find more information,
including routine uses permitted by the Privacy Act, in the
Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

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 Serious Energy, Inc., a corporation (``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 respondent's marketing and sale of replacement
windows for use in residences. According to the FTC complaint,
respondent represented that consumers who replace their windows with
SeriousWindows 600 Quantum 2 Series windows are likely to achieve
residential energy savings of 49% or save 49% on residential heating
and cooling costs. Additionally, according to the FTC complaint,
respondent represented that consumers who replace their windows with
SeriousWindows 501 Series windows are likely to achieve residential
energy savings of 40% or save 40% on residential heating and cooling
costs. The complaint alleges that respondent did not possess and rely
upon a reasonable basis substantiating these representations when it
made them. Many factors determine the savings homeowners can realize by
replacing their windows, including the home's geographic location,
size, insulation package, and existing windows. Consumers who replace
single or double-paned wood or vinyl-framed windows--common residential
window types in the United States--with SeriousWindows replacement
windows are not likely to achieve a 40% or 49% reduction in residential
energy consumption or heating and cooling costs. The complaint also
alleges that, by providing its independent dealers and installers with
advertising and other promotional materials making the above
unsubstantiated representations, respondent provided the means and
instrumentalities to engage in deceptive practices. Thus, the complaint
alleges that respondent engaged in unfair or deceptive practices in
violation of Section 5(a) of the FTC Act.
Some promotional materials challenged in the FTC's complaint
include the words ``up to'' in an apparent attempt to qualify
representations that consumers who replace windows with respondent's
windows are likely to achieve specified amounts of residential energy
savings or reduction in residential heating and cooling costs. In the
context of specific ads in this case, the words ``up to'' do not
effectively qualify such representations for replacement windows. The
FTC's complaint and the proposed consent order should not be
interpreted as a general statement of how the Commission may interpret
or take other action concerning representations including the words
``up to'' for other products or services in the future.
The proposed consent order contains three provisions designed to
prevent respondent from engaging in similar

[[Page 12588]]

acts and practices in the future. Part I addresses the marketing of
windows. It prohibits respondent from making any representation that:
(A) Consumers who replace their windows with respondent's windows
achieve up to or a specified amount or percentage of energy savings or
reduction in heating and cooling costs; or (B) respondent guarantees or
pledges that consumers who replace their windows with respondent's
windows will achieve up to or a specified amount or percentage of
energy savings or reduction in heating and cooling costs; unless the
representation is non-misleading and, at the time of making such
representation, respondent possesses and relies upon competent and
reliable scientific evidence to substantiate that all or almost all
consumers are likely to receive the maximum represented savings or
reduction. Further, if respondent represents, guarantees, or pledges
that consumers achieve such energy savings or heating and cooling cost
reductions under specified circumstances, it must: Disclose those
circumstances clearly and prominently in close proximity to such
representation, guarantee, or pledge; and substantiate that all or
almost all consumers are likely to receive the maximum represented,
guaranteed, or pledged savings or reduction under those circumstances
(e.g., when replacing a window of a specific composition in a building
having a specific level of insulation in a specific region). The
performance standard imposed under this Part constitutes fencing-in
relief reasonably necessary to ensure that any future energy savings or
reduction claims are not deceptive.
Parts II and III address any product or service for which
respondent makes any energy-related efficacy representation. Part II
prohibits respondent from making any representation: (A) That any
specific number or percentage of consumers who replace their windows
with respondent's windows achieve energy savings or reduction in
heating and cooling costs; or (B) about energy consumption, energy
savings, energy costs, heating and cooling costs, U-factor, solar heat
gain coefficient, R-value, K-value, insulating properties, thermal
performance, or energy-related efficacy; unless the representation is
non-misleading and substantiated by competent and reliable scientific
evidence. Part III prohibits respondent from providing to others the
means and instrumentalities with which to make any false,
unsubstantiated, or otherwise misleading representation of material
fact. It defines ``means and instrumentalities'' to mean any
information, including any advertising, labeling, or promotional, sales
training, or purported substantiation materials, for use by trade
customers in their marketing of any such product or service.
Parts IV through VII require respondent to: Keep copies of
advertisements and materials relied upon in disseminating any
representation covered by the order; provide copies of the order to
certain personnel, agents, and representatives having responsibilities
with respect to the subject matter of the order; notify the Commission
of changes in its structure that might affect compliance obligations
under the order; and file a compliance report with the Commission and
respond to other requests from FTC staff. Part VIII provides that the
order will terminate after twenty (20) years under certain
circumstances.
The purpose of this analysis is to facilitate public comment on the
proposed order. It is not intended to constitute an official
interpretation of the complaint or the proposed order, or to modify the
proposed order's terms in any way.

By direction of the Commission, Commissioner Rosch abstaining.
Donald S. Clark,
Secretary.
[FR Doc. 2012-4999 Filed 2-29-12; 8:45 am]
BILLING CODE 6750-01-P