[Federal Register Volume 77, Number 41 (Thursday, March 1, 2012)]
[Notices]
[Pages 12590-12591]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-5001]
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FEDERAL TRADE COMMISSION
[File No. 102 3171]
Winchester Industries; 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 ``Winchester, File No.
102 3171'' on your comment, and file your comment online at https://ftcpublic.commentworks.com/ftc/winchesterconsent, 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 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 ``Winchester, File No. 102 3171'' 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/winchesterconsent 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 ``Winchester, File No. 102
3171'' 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
[[Page 12591]]
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 Winchester Industries, a partnership (``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
Bristol and Winter Lock Super Triple-E A-Plus with Alpha-10 windows are
likely to achieve residential energy savings of 47% or to save 47% on
their 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
Winchester replacement windows are not likely to achieve a 47%
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 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 though 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. 2012-5001 Filed 2-29-12; 8:45 am]
BILLING CODE 6750-01-P