[Federal Register Volume 60, Number 208 (Friday, October 27, 1995)]
[Notices]
[Pages 55031-55033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26680]
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FEDERAL TRADE COMMISSION
[File No. 942-3172]
BBDO Worldwide, Inc.; Consent Agreement with Analysis To Aid
Public Comment
AGENCY: Federal Trade Commission.
ACTION: Consent agreement.
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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, among other things, prohibit a New York City-based advertising
firm from misrepresenting the amount of fat, calories, or cholesterol
in any frozen yogurt, any frozen sorbet, and most ice cream products.
The alleged violations stem from the firm's role in developing certain
advertisements for Haagen-Dazs frozen yogurt products.
DATES: Comments must be received before December 26, 1995.
ADDRESSES: Comments should be directed to: FTC/Office of the Secretary,
Room 159, 6th St. and Pa. Ave., N.W., Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT:
Anne V. Maher, Bureau of Consumer Protection, Federal Trade Commission,
S-4002, 6th Street & Pennsylvania Ave., NW., Washington, DC 205680.
(202) 326-2987).
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 of 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)).
The Federal Trade Commission, having initiated an investigation of
certain acts and practices of BBDO Worldwide, Inc., a corporation,
hereinafter sometimes referred to as proposed respondent, and it now
appears that proposed respondent is 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 by and between BBDO Worldwide, Inc., by its
duly authorized officer, and its attorney, and counsel for the Federal
Trade Commission that:
1. Proposed respondent BBDO Worldwide, Inc. is a corporation
organized, existing and doing business under and by virtue of the laws
of the State of New York, with its office and principal place of
business located at 1285 Avenue of the Americas, New York, NY 10019.
2. Proposed respondent admits all the jurisdictional facts set
forth in the draft compliant attached hereto.
3. Proposed respondent waives:
(a) Any further procedural steps;
(b) The requirement that the Commission's decision contain a
statement of findings of fact and conclusions of law; and
(c) All rights to seek judicial review or otherwise to challenge or
contest the validity of the Order entered pursuant to this agreement.
4. 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 of
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 respondent, in which event
it will take such action as it may consider appropriate, or issue and
serve its compliant (in such form as the circumstances may require) and
decision, in disposition of the proceeding.
5. This agreement is for settlement purposes only and does not
constitute an admission by proposed respondent that the law has been
violated as alleged in the draft of complaint here attached, or that
the facts as alleged in the draft complaint, other than jurisdictional
facts, are true.
6. The 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 respondent, (1) issue its complaint corresponding in form and
substance with the draft of 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 respondent's address as stated in this agreement shall
constitute service. Proposed respondent waives any rights it 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 in the
agreement may be used to vary or contradict the terms of the Order.
7. Proposed respondent has read the proposed complaint and Order
contemplated hereby. Proposed respondent understands that once the
Order has been issued, it will be required to file one or more
compliance reports showing that it has fully complied with the Order.
Proposed respondent further understands that it 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 respondent BBDO Worldwide, Inc., a corporation,
its successors and assigns, and its officers, agents, representatives
and employees, directly or through any corporation, subsidiary,
division or other device, in connection with the manufacturing,
labeling, advertising, promotion, offering for sale, sale, or
distribution of any frozen yogurt, frozen sorbet or ice cream product
(excluding all other food or confection products in which ice cream is
an ingredient comprising less than fifty percent of the total weight of
the involved product) in or affecting commerce, as ``commerce'' is
defined in the Federal Trade Commission Act, do forthwith cease and
desist from misrepresenting, in any manner, directly or by implication,
through numerical or descriptive terms or any other means, the
existence or amount of fat, saturated fat, cholesterol or calories in
any such product. If any
[[Page 55032]]
representation covered by this Part either directly or by implication
conveys any nutrient content claim defined (for purposes of labeling)
by any regulation promulgated by the Food and Drug Administration,
compliance with this Part shall be governed by the qualifying amount
for such defined claim as set forth in that regulation.
II
Nothing in this Order shall prohibit respondent from making any
representation that is specifically permitted in labeling for any
frozen yogurt, frozen sorbet or ice cream by regulations promulgated by
the Food and Drug Administration pursuant to the Nutrition Labeling and
Education Act of 1990.
III
It is further ordered that for three (3) years after the last date
of dissemination of any representation covered by this Order,
respondent, or its successors and assigns, shall maintain and upon
request make available to the Federal Trade Commission for inspection
and copying:
1. All materials that were relied upon in disseminating such
representation; and
2. All tests, reports, studies, surveys, demonstrations, or other
evidence in its possession or control that contradict, qualify, or call
into question such representation, or the basis relied upon for such
representation, including complaints from consumers.
IV
It is further ordered that respondent shall notify the Commission
at least thirty (30) days prior to any proposed change in the
respondent such as dissolution, assignment or sale resulting in the
emergence of a successor corporation, the creation or dissolution of
subsidiaries, or any other change in the respondent which may affect
compliance obligations arising out of this Order.
V
It is further ordered that respondent shall, within thirty (30)
days after service of this Order, distribute a copy of this Order to
each of its operating divisions and to each of its officers, agents,
representatives, or employees engaged in the preparation or placement
of advertisements or other materials covered by this Order.
VI
This Order will terminate twenty (20) years from the date of its
issuance, or twenty years from the most recent date that the United
States or the Federal Trade Commission files a complaint (with or
without an accompanying consent decree) in federal court alleging any
violation of the Order, whichever comes later; provided, however, that
the filing of such a complaint will not effect the duration of:
A. Any paragraph in this Order that terminates in less than twenty
years;
B. This Order's application to any respondent that is not named as
a defendant in such complaint; and
C. This Order if such complaint is filed after the Order has
terminated pursuant to this paragraph.
Provided further, that if such complaint is dismissed or a federal
court rules that the respondent did not violate any provision of the
Order, and the dismissal or ruling is either not appealed or upheld on
appeal, then the Order will terminate according to this paragraph as
though the complaint was never filed, except that the Order will not
terminate between the date such complaint is filed and the later of the
deadline for appealing such dismissal or ruling and the date such
dismissal or ruling is upheld on appeal.
VII
It is further ordered that respondent shall, within sixty (60) days
after service 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 it has complied with this
Order.
Analysis of Proposed Consent Order To Aid Public Comment
The Federal Trade Commission has accepted an agreement, subject to
final approval, to a proposed consent order form BBDO Worldwide, Inc.
(``BBDO'').
The proposed consent order has been placed on the public record for
sixty (60) days for reception of comments by interested persons.
Comments received during this period will become part of the public
record. After sixty 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 concerns advertising claims made by BBDO, an
advertising agency, for Haagen-Dazs frozen yogurts. A separate consent
agreement with Haagen-Dazs relating to the same advertisements was
given final approval by the Commission on June 2, 1995.
The Commission's complaint in this matter charges BBDO with
engaging in unfair or deceptive practices in connection with the
advertising of Haagen-Dazs frozen yogurt products, which are sold in
both carton and bar forms.
According to the complaint, BBDO falsely represented that the
frozen yogurt is 98 percent fat free and low fat. The complaint also
alleges that BBDO falsely represented that the frozen yogurt bars
contain one gram of fat per serving and are low fat.
The complaint further alleges that BBDO falsely represented that
the frozen yogurt bars contain 100 calories per serving. Finally, the
complaint alleges that BBDO knew or should have know that these claims
were false and misleading.
The consent order contains provisions designed to remedy the
violations charged and to prevent BBDO from engaging in similar
deceptive and unfair acts and practices in the future.
Part I of the order prohibits BBDO from misrepresenting the
existence or amount of fat, saturated fat, cholesterol or calories in
any frozen yogurt, frozen sorbet or ice cream product (excluding all
other food or confection products in which ice cream is an ingredient
comprising less than fifty percent of the total weight of the involved
product). Part I also requires that any representation covered by the
Part that conveys a nutrient content claim defined for labeling by any
regulation of the Food and Drug Administration (``FDA'') must comply
with the qualifying amount set forth in that regulation.
Part II of the order provides that representations that would be
specifically permitted in food labeling, under regulations issued by
the FDA pursuant to the Nutrition Labeling and Education Act of 1990,
are not prohibited by the order.
Part III of the order requires BBDO to maintain copies of all
materials relied upon in making any representation covered by the
order.
Part IV of the order requires BBDO to notify the Commission of any
changes in corporate structure that might affect compliance with the
order.
Part V of the order requires BBDO to distribute copies of the order
to its operating divisions and to various officers, agents and
representatives of BBDO.
Part VI of the order is a ``sunset'' provision, dictating that the
order will terminate twenty years from the date it is issued or twenty
years after a complaint is filed in federal court, by either the United
States or the FTC, alleging any violation of the order.
Part VII of the order requires BBDO to file with the Commission one
or more
[[Page 55033]]
reports detailing compliance with the order.
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 any of
their terms.
Donald S. Clark,
Secretary.
[FR Doc. 95-26680 Filed 10-26-95; 8:45 am]
BILLING CODE 6750-01-M