[Federal Register Volume 59, Number 28 (Thursday, February 10, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-3087] [[Page Unknown]] [Federal Register: February 10, 1994] ----------------------------------------------------------------------- FEDERAL TRADE COMMISSION [File No. 922 3123] Unocal Corporation, et al.; Proposed Consent Agreement With Analysis To Aid Public Comment AGENCY: Federal Trade Commission. ACTION: Proposed consent agreement. ----------------------------------------------------------------------- SUMMARY: In settlement of alleged violations of federal law prohibiting unfair acts and practices and unfair methods of competition, this consent agreement, accepted subject to final Commission approval, would prohibit, among other things, the three companies from making claims about the attributes or performance of any gasoline without first having scientific evidence to substantiate their claims. In addition, the respondents would be required to mail their credit-card customers, in certain states, a notice stating that most cars do not need a high octane gasoline to perform properly, and to remind them to check their owner's manual to determine the proper octane level of gasoline to purchase. DATES: Comments must be received on or before April 11, 1994. ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, room 159, 6th Street and Pennsylvania Avenue NW., Washington, DC 20580. FOR FURTHER INFORMATION CONTACT: Sue Frauens, FTC/Los Angeles Regional Office, 11000 Wilshire Blvd., Suite 13209, Los Angeles, CA. 90024. (310) 575-7890. SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Section 2.34 of the Commission's Rules of Practice (16 CFR 2.34), notice is hereby given that the following 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 sixty (60) days. Public comment is invited. Such comments or views will be considered by the Commission and will be available for inspection and copying at its principal office in accordance with Section 4.9(b)(6)(ii) of the Commission's Rules of Practice (16 CFR 4.9(b)(6)(ii)). Agreement Containing Consent Order To Cease and Desist In the matter of Unocal Corporation, a corporation, Union Oil Company of California, a corporation, and Leo Burnett Company, Inc., a corporation. The Federal Trade Commission having initiated an investigation of certain acts and practices of Unocal Corporation, a corporation, Union Oil Company of California, a corporation, and Leo Burnett Company, Inc., a corporation, hereinafter sometimes referred to as proposed respondents, and it now appears that proposed respondents are willing to enter into an agreement containing an order to cease and desist from the use of the acts and practices being investigated. It is hereby agreed That by and between Unocal Corporation, a corporation, Union Oil Company of California, a corporation, and Leo Burnett Company, Inc., a corporation, and counsel for the Federal Trade Commission that: 1. Respondent Unocal Corporation is a corporation organized, existing, and doing business under and by virtue of the laws of the State of Delaware, with its office and principal place of business at 1201 West Fifth Street, Los Angeles, California 90017. 2. Respondent Union Oil Company of California is a corporation organized, existing, and doing business under and by virtue of the laws of the State of California, with its office and principal place of business at 1201 West Fifth Street, Los Angeles, California 90017. 3. Respondent Leo Burnett Company, Inc. is a corporation organized, existing, and doing business under and by virtue of the laws of the State of Delaware, with its office and principle place of business at 35 West Wacker Drive, Chicago, Illinois 60601. 4. Proposed respondents admit all the jurisdictional facts set forth in the draft complaint here attached. 5. Proposed respondents waive: (a) Any procedural steps; (b) The requirement that the Commission's decision contain a statement of findings of fact and conclusion of law; (c) All rights to seek judicial review or otherwise to challenge or contest the validity of the order entered pursuant to this agreement; and (d) Any claim under the Equal Access To Justice Act. 6. This agreement shall not become part of the public record of the proceeding unless and until it is accepted by the Commission. If this agreement is accepted by the Commission, it, together with the draft complaint contemplated thereby, will be placed on the public record for a period of sixty (60) days and information in respect thereto publicly released. The Commission thereafter may either withdraw its acceptance of this agreement and so notify the proposed respondents, in which event it will take such action as it may consider appropriate, or issue and serve its complaint (in such form as the circumstances may require) and decision, in disposition of the proceeding. 7. This agreement is for settlement purposes only and does not constitute an admission by proposed respondents of facts, other than jurisdictional facts, or of violations of law as alleged in the draft complaint here attached. 8. This agreement contemplates that, if it is accepted by the Commission, and if such acceptance is not subsequently withdrawn by the Commission pursuant to the provisions of Section 2.34 of the Commission's Rules, the Commission may, without further notice to proposed respondents: (1) Issue its complaint corresponding in form and substance with the draft complaint here attached and its decision containing the following order to cease and desist in disposition of the proceeding; and (2) make information public in respect thereto. When so entered, the order to cease and desist shall have the same force and effect and may be altered, modified or set aside in the same manner and within the same time provided by statute for other orders. The order shall become final upon service. Delivery by the U.S. Postal Service of the complaint and decision containing the agreed-to-order to proposed respondents' address as stated in this agreement shall constitute service. Proposed respondents waive any rights they may have to any other manner of service. The complaint may be used in construing the terms of the order, and no agreement, understanding, representation, or interpretation not contained in the order or the agreement may be used to vary or contradict the terms of the order. 9. Proposed respondents have read the proposed complaint and order contemplated hereby. They understand that once the order has been issued, they will be required to file one or more compliance reports showing that they have fully complied with the order. Proposed respondents further understand that they may be liable for civil penalties in the amount provided by law for each violation of the order after it becomes final. Order I It is Ordered That respondents Unocal Corporation, Union Oil Company of California and Leo Burnett Company, Inc., corporations, their successors and assigns, and their officers, agents, representatives, and employees, directly or through any corporation, subsidiary, division, or other device, in connection with the advertising, labelling, packaging, offering for sale, sale or distribution of Unocal 92 and 89 octane gasolines or any other gasoline in or affecting commerce, as ``commerce'' is defined in the Federal Trade Commission Act, do forthwith cease and desist from making any representation, directly or by implication, about: A. The superiority of Unocal 92 or 89 octane in providing engine power or acceleration for any automobile; B. The superiority of Unocal 92 or 89 octane in prolonging the longevity of an engine for any automobile; or C. The relative or absolute attributes or performance of any gasoline with respect to vehicle engine power, acceleration, longevity, or any other performance characteristic, unless at the time of making such representation, respondents possess and rely upon competent and reliable scientific evidence that substantiates the representation. For purposes of this Order, ``competent and reliable scientific evidence'' shall mean tests, analysis, research, studies or other evidence based on the expertise of professionals in the relevant area, that has been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results. Provided That, nothing in this Order shall prohibit respondents from truthfully representing the numerical octane rating of any gasoline. Provided further that, it shall be a defense hereunder that respondent Leo Burnett Company, Inc. neither knew nor had reason to know of an inadequacy of substantiation for the representation. It is further ordered That for three (3) years after the date of the last dissemination of the representation to which they pertain, respondents Unocal Corporation, Union Oil Company of California and Leo Burnett Company, Inc. shall maintain and upon request make available to the Federal Trade Commission or its staff for inspection and copying: A. All materials relied upon to substantiate any claim or representation covered by this Order; and B. All tests, reports, studies or surveys in respondents' possession or control that contradict any representation covered by this Order. III It is further rodered That respondents Unocal Corporation, Union Oil Company of California and Leo Burnett Company, Inc. shall forthwith distribute a copy of this Order to all operating divisions, subsidiaries, franchisees, officers, managerial employees, and all of their employees or agents engaged in the preparation or placement of advertisements or promotional materials covered by this Order and shall obtain from each such employee a signed statement acknowledging receipt of the order. IV It is further ordered That respondents Unocal Corporation, Union Oil Company of California and Leo Burnett Company, Inc. shall notify the Commission at least thirty (30) days prior to any proposed change in the corporation(s) such as a dissolution, assignment or sale resulting in the emergence of a successor corporation, the creation or dissolution of subsidiaries or any other change in the corporation(s) that may affect compliance obligatings under this Order. V It is further ordered That respondents Unocal Corporation, Union Oil Company of California and Leo Burnett Company, Inc. shall, within sixty (60) days after service upon them of this Order and at such other times as the Commission may require, file with the Commission a report, in writing, setting forth in detail the manner and form in which they have complied with this Order. It is further ordered That respondents Unocal Corporation and Union Oil Company of California shall mail to the last known address of all consumers who hold an active Unocal credit card on the date this Order becomes final, and who reside in any of the states of Oregon, Washington, Nevada, California, or Hawaii, an exact copy of the Notice which is incorporated by reference as Appendix A. The mailing shall not include any other documents that contradict or in any way mitigate the information in the Notice. Respondents Unocal Corporation and Union Oil Company of California shall bear all costs of printing and disseminating the Notice. The Notice shall be mailed by first class mail within 30 days of the date of this Order becomes final. Appendix A--Important Information About the Octane Needs of Your Car As a Unocal customer, you probably know that Unocal offers three grades of unleaded gasoline at its service stations: 87 octane regular, 89 octane mid-grade, and 92 octane premium. The 89 and 92 octane grades are formulated primarily for vehicles that are designed to operate on higher octanes (high-performance vehicles) and for vehicles that may be experiencing engine knocking and pinging. In July 1991, the Federal Trade Commission issued a brochure that advises consumers to purchase the lowest octane gasoline that their cars can use without engine knocking or pinging. The brochure notes that ``many experts believe that most cars do not need a high octane gasoline to perform properly and efficiently.'' The brochure also advises consumers to ``first check your owner's manual for the recommended octane level.'' According to the brochure, if your vehicle runs without knocking or pinging it generally does not need, and will not perform better with, higher octane gasoline. The octane requirements of your vehicle can vary over time or under certain weather, altitude and driving conditions. If your car is knocking or pinging at the octane level recommended in your owner's manual, you may need a higher octane gasoline. Analysis of Proposed Consent Order To Aid Public Comment The Federal Trade Commission has accepted, subject to final approval, an agreement to a proposed consent order from Unocal Corporation, Union Oil Company of California, and Leo Burnette Company, Inc. (``Respondents''). The proposed consent order has been placed on the public record for sixty (60) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After sixty (60) days, the Commission will again review the agreement and the comments received and will decide whether it should withdraw from the agreement and take other appropriate action, or make final the proposed order contained in the agreement. Unocal Corporation and its wholly-owned subsidiary, Union Oil Company of California, Inc. (collectively, ``Unocal'') are marketers of gasoline and other petroleum products, including Unocal 89 and 92 octane gasolines. Leo Burnette Company, Inc. (``Leo Burnett) is an advertising agency and prepared and disseminated advertisements for Unocal gasoline. The Commission's complaint in this matter charges Respondents with making unsubstantiated claims in advertisements and promotional materials for Unocal 89 and 92 octane gasolines. Specifically, the complaint alleges that Respondents represented that Unocal 89 and 92 provide superior engine performance and longevity as compared to regular unleaded gasoline, that would be significant to consumers, for automobiles generally. The complaint alleges that Respondents represented that they had a reasonable basis for these claims when, in fact, they did not. The complaint further charges that Leo Burnett knew or should have known that the claims were unsubstantiated. The consent order contains provisions designed to remedy the alleged violations. Part I of the order requires Respondents to cease from making any representations regarding (a) the superiority of Unocal 89 or 92 octane gasolines in providing engine power or acceleration or prolonging engine longevity, or (b) the relative or absolute attributes or performance of any gasoline with respect to any performance characteristic, unless they possess competent and reliable scientific evidence to substantiate the claim. Part I states that nothing in the order prohibits Respondents from truthfully representing the numerical octane rating of any gasoline. Part I also provides that Leo Burnett would have a defense to an alleged violation of the order if it neither knew nor had reason to know that the substantiation for any representation was inadequate. Part II of the order requires Respondents to maintain and make available to the Federal Trade Commission material relating to the support for their representations. Part III requires Respondents to provide a copy of the order to, and obtain a signed acknowledgement from, their divisions, subsidiaries, franchisees, officers, managerial employees and all other employees involved in advertising covered by the order. Part IV requires Respondents to notify the Commission of certain changes in corporate structure. Part V requires Respondents to file written compliance reports with the Commission. Part VI of the order requires Unocal to mail a notice to active Unocal credit card holders in five states within thirty days after the order is final. The five states are Oregon, Washington, Nevada, California, and Hawaii. The notice explains that Unocal sells three octane levels of unleaded gasoline--87 regular, 89 mid-grade and 92 premium, and that the last two grades are designed primarily for high performance vehicles and vehicles that are experiencing engine knocking or pinging. The notice then refers to a 1991 FTC brochure which advises consumers to check their owner's manual for the recommended octane level and purchase the lowest octane gasoline that does not result in knocking. It notes that, according to the brochure, if the car runs without knocking or pinging, it generally will not perform better with higher octane. The notice further states that octane requirements can vary under different conditions, and that if the car is knocking at the recommended octane level, it may need a higher octane. 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 agreement and proposed order or to modify in any way their terms. Donald S. Clark, Secretary. Separate Statement of Commissioner Deborah K. Owen, Concurring In Part, and Dissenting in Part, in the Matter of Unocal Corporation, et al. (File No. 922-3123) I concur in the Commission's action to accept for public comment an administrative complaint against, and consent agreement with, Unocal Corporation and its advertising agency, Leo Burnett Company, Inc., for allegedly making unsubstantiated octane performance and longevity claims. However, based on the ad itself and the available extrinsic evidence, I do not find reason to believe that Exhibit A to the complaint (commonly referred to as the ``Love Is Forever'' ad) conveys the message alleged in Paragraph 8, that Unocal 92 octane provides significantly superior engine performance and longevity for automobiles generally, as opposed to for high performance automobiles. Accordingly, I respectfully dissent as to Exhibit A, Paragraph 8, and all references to 92 octane gasoline in the administrative complaint. Statement of Roscoe B. Starek, III Concurring in Part and Dissenting in Part, in Unocal Corporation, et al., Matter No. 922-3123 I support the decision to charge Unocal Corporation with unsubstantiated representations regarding its 89 octane and 92 octane gasoline. I further support the decision to charge Leo Burnett Company, Inc. for unsubstantiated representations regarding 92 octane gasoline. I dissent, however, from issuance of this complaint insofar as it charges Leo Burnett with liability for the Unocal 89 octane claims. Complaint paras. 9, 11, 12. In recent years, the Commission has prosecuted three advertising agencies for very significant, even egregious violations of Section 5 of the Federal Trade Commission Act (FTC Act). Here, I think the record supports the conclusion that Leo Burnett made substantial, good faith pre-dissemination efforts to determine whether its 89 octane claim was substantiated. Hence, it is my view that inclusion of the 89 octane allegation in the complaint represents a significant and unnecessary departure from recent precedent regarding advertising agency liability. I also oppose inclusion of this allegation against Leo Burnett on legal grounds. The FTC Act requires the Commission to make a two-step determination before it issues a complaint: It must conclude first, that it has reason to believe that an unfair or deceptive act or practice has been committed, and second, that a proceeding would be in the interest of the public. FTC Act, Section 5(b), 15 U.S.C. 45(b). The record supports the conclusion that Leo Burnett requested and was presented with factual information in support of the claim for 89 octane gasoline, although it also possessed some information that would tend to undermine the general nature of the benefit provided by 89 octane gasoline. The Commission previously has held, with respect to a claim requiring complex scientific substantiation, that where an advertising agency requested and relied upon evidence that provided some scientific basis for the claim, possession of additional information tending to undermine the substantiation did not put the agency on notice that substantiation was inadequate. Bristol-Myers Co., 102 F.T.C. 21, 365-66 (1983). Given this precedent, and on the record before us, I am not able to conclude that there is reason to believe that Leo Burnett engaged in actionable conduct in connection with the 89 octane claims. Moreover, elimination of the 89 octane charge from the complaint would have simplified the complaint without the need for any significant change in order coverage.\1\ Under these circumstances, it does not appear that it is in the public interest to include this charge in the complaint. \1\While it would have appeared appropriate to exempt Leo Burnett from Parts 1A and 1B of the order insofar as they specifically pertained to engine power, acceleration and longevity claims for 89 octane gasoline, Part 1C still would have fenced-in these and other performance claims regarding any gasoline. --------------------------------------------------------------------------- [FR Doc. 94-3087 Filed 2-9-94; 8:45 am] BILLING CODE 6750-01-M