[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Notices]
[Pages 13197-13199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7293]
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FEDERAL TRADE COMMISSION
[File No. 922-3308]
Cancer Treatment Centers of America, Inc.; Midwestern Regional
Medical Center, Inc.; Memorial Medical Center and Cancer Institute,
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
require the Arlington, Illinois-based company and two affiliated
hospitals to substantiate future claims regarding the success or
efficacy of their cancer treatments and to ensure that testimonials
they use do not misrepresent the typical experience of their patients.
The consent agreement settles allegations that the company and the
hospitals made false and unsubstantiated claims in advertising and
promoting their cancer treatments.
DATES: Comments must be received on or before May 28, 1996.
ADDRESSES: Comments should be directed to: FTC/Office of the Secretary,
Room 159, 6th St. and Pa. Ave., N.W., Washington, D.C. 20580.
FOR FURTHER INFORMATION CONTACT:
Richard F. Kelly, Federal Trade Commission, H-200, 6th and Pennsylvania
Ave, NW, Washington, DC 20580. 202-326-3304. Walter C. Gross, III,
Federal Trade Commission, H-200, 6th and Pennsylvania Ave, NW,
Washington, DC 20580. 202-326-3319.
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)).
Before Federal Trade Commission
In the Matter of Cancer Treatment Centers of America, Inc., a
corporation, Midwestern Regional Medical Center, Inc., a
corporation, and Memorial Medical Center and Cancer Institute, Inc.,
a corporation; Agreement Containing Consent Order to Cease and
Desist.
The Federal Trade Commission having initiated an investigation of
certain acts and practices of Cancer Treatment Centers of America,
Inc., a corporation, Midwestern Regional Medical Center, Inc., a
corporation, and Memorial Medical Center and Cancer Institute, Inc., a
corporation (hereinafter sometimes referred to as ``proposed
respondents'' or ``respondents''), and it now appearing 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 by and between Cancer Treatment Centers of
America, Inc., a corporation, Midwestern Regional Medical Center, Inc.,
a corporation, and Memorial Medical Center and Cancer Institute, Inc.,
a corporation, and their attorneys, and counsel for the Federal Trade
Commission that:
1. Proposed respondent Cancer Treatment Centers of America, Inc.,
is an Illinois corporation, with its principal office or place of
business at 3455 Salt Creek Lane, Suite 200, Arlington, Illinois 60005-
1090.
Proposed respondent Midwestern Regional Medical Center, Inc., is an
Illinois corporation, with its principal office or place of business at
Shiloh Boulevard and Emmaus Avenue, Zion, Illinois 60099.
Proposed respondent Memorial Medical Center and Cancer Institute,
Inc., is an Oklahoma corporation, with its principal office or place of
business at 8181 South Lewis Avenue, Tulsa, Oklahoma 74137.
2. Proposed respondents admit all the jurisdictional facts set
forth in the attached draft complaint.
3. Proposed respondents waive:
(a) Any further procedural steps;
(b) The requirement that the Commission's decision contain a
statement of findings of fact and conclusions 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, 5 U.S.C. 504.
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 attached
draft complaint, 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
service its complaint (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 respondents of facts, other than
jurisdictional facts, or of violations of law as alleged in the draft
of complaint here attached.
6. 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 Sec. 2.34 of the Commission's
Rules, the Commission may, without further notice to proposed
respondents: (a) Issue its complaint corresponding in form and
substance with the attached draft complaint and its decision containing
the following Order to cease and desist in disposition of the
proceeding; and (b) 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 right 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.
7. Proposed respondents have read the attached draft complaint and
the following Order. Proposed respondents understand that once the
Order has been issued, they will be required to file one or more
compliance reports showing
[[Page 13198]]
that they have fully complied with the Order. Proposed respondents
further understand 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
Definitions
For the purposes of this Order, the following definitions shall
apply:
A. ``Competent and reliable scientific evidence'' shall mean tests,
analyses, research, studies or other evidence based on the expertise of
professionals in the relevant area that have 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.
B. ``Cancer'' shall mean any of various malignant neoplasms
characterized by the proliferation of anaplastic cells that tend to
invade surrounding tissue and may metastasize to new body sites or the
pathological condition characterized by such growths.
C. ``Independent organization or facility'' means any organization,
association, or entity, whether or not for profit, which is not owned
or controlled, directly or indirectly, by respondents, individually or
collectively.
D. ``Endorsement'' means any advertising message (including verbal
statements, demonstrations or depictions of the name, signature,
likeness or other personal identifying characteristics of any
individual or the name or seal of an organization) which message
consumers are likely to believe reflects the opinions, beliefs,
findings, or experience of a party other than the sponsoring
advertiser.
I
It is ordered that respondents Cancer Treatment Centers of America,
Inc., a corporation, Midwestern Regional Medical Center, Inc., a
corporation, and Memorial Medical Center and Cancer Institute, Inc., a
corporation, their successors or assigns, (hereinafter sometimes
referred to as ``respondents''), and respondents' officers,
representatives, agents, and employees, directly or through any
corporation, subsidiary, division, or other advice, including
franchisees or licensees, in connection with the advertising,
promotion, offering for sale, or sale of products or services
purporting to treat or cure disease, in or affecting commerce, as
``commerce'' is defined in the Federal Trade Commission Act, do
forthwith cease and desist from:
A. Making any representation, directly or by implication, about
either:
(1) The existence or content of statistical data that purports to
document survivorship rates or cure rates for cancer patients in
respondents' treatment facilities, or
(2) Cure rates or survivorship rates either for any of respondents'
treatment facilities or for any treatment modality or modalities
offered by respondents.
unless, at the time of making any such representation, respondents
possess and rely upon competent and reliable evidence, which when
appropriate must be competent and reliable scientific evidence,
substantiating the representation.
B. Representing, directly or by implication, that any modality for
the treatment or mitigation of cancer or its attendant symptoms is
approved, endorsed or accepted by any independent organization or
facility unless, at the time of making any such representation,
respondents possess and rely upon competent and reliable evidence,
which when appropriate must be competent and reliable scientific
evidence, substantiating the representation.
C. Making any representation, directly or by implication, about the
efficacy of any modality that purports to treat or mitigate cancer or
its attendant symptoms, unless, at the time of making any such
representation, respondents possess and rely upon competent and
reliable scientific evidence substantiating the representation.
D. Representing, directly or by implication, that any endorsement
of any of respondents' treatment programs that purport to mitigate or
cure cancer represents the typical or ordinary experience of members of
the public who use the program, unless:
(1) At the time of making such representation, respondents possess
and rely upon competent and reliable scientific evidence, that
substantiates such representation, or
(2) Respondents disclose clearly, prominently and in close
proximity to the endorsement or testimonial either:
(a) What the generally expected results would be for users of such
program, or
(b) The limited applicability of the endorser's experience to what
consumers may generally expect to achieve, that is, that consumers
should not expect to experience similar results.
E. Making any representation, directly or by implication, about the
performance, safety or benefits of any modality that purports to treat
or mitigate cancer, its attendant symptoms or attendant diseases,
unless, at the time of making any such representation, respondents
possess and rely upon competent and reliable scientific evidence
substantiating the representation.
II
It is further ordered that respondents shall notify the Commission
at least thirty (30) days prior to the effective date of any proposed
change such as dissolution, assignment, or sale resulting in the
emergence of a successor corporation(s), the creation or dissolution of
subsidiaries, or any other change in the corporation(s) that may affect
compliance obligations arising out of this Order.
III
It is further ordered that for three (3) years after the last date
of dissemination of any representation covered by this Order,
respondents, or their successors and assigns, shall maintain and upon
request make available to the Federal Trade Commission for inspection
and copying:
A. All materials that were relied upon in disseminating such
representation; and
B. All tests, reports, studies, surveys, demonstrations or other
evidence in their 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 within ten (10) days from the date of
service of this order, respondents shall distribute a copy of this
Order to each of its officers, agents, representatives, independent
contractors and employees who are involved in the preparation and
placement of advertisements or promotional materials or who have any
responsibilities with respect to the subject matter of this Order; and,
shall secure from each such person a signed statement acknowledging
receipt of this order.
V
It is further ordered that respondents shall, within sixty (60)
days after the date of service of this Order, file with the Commission
a report, in writing, setting forth in detail the manner and form in
which they have complied with this Order.
Analysis of Proposed Consent Order To Aid Public Comment
The Federal Trade Commission has accepted an agreement to a
proposed
[[Page 13199]]
consent order from three corporations who operate under the trade name
Cancer Treatment Centers of America and offer cancer treatment services
to the public. The three corporations are: Cancer Treatment Centers of
America, Inc., Midwestern Regional Medical Centers, Inc., and Memorial
Medical Center and Cancer Institute, Inc.
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 (60) days, the Commission will again review the
agreement and will decide whether it should withdraw from the agreement
or make final the agreement's proposed order.
The Commission has alleged that proposed respondents failed to
possess a reasonable basis for claiming that their five year
survivorship rates for cancer patients that they treated was ``among
the highest recorded.'' The Commission further alleges that
representations proposed respondents made about the ability of
treatments known as ``whole body hyperthermia'' and ``brachytheraphy''
to successfully treat some cancers and/or improve survivorship rates
were also unsubstantiated.
Additionally, the Commission has alleged that proposed respondents
claimed that whole body hyperthermia was ``an approved medical
procedure,'' implying that the procedure had been approved by an
independent agency or medical body when, in fact, it had not. Finally,
the Commission has alleged that proposed respondents failed to
substantiate advertisements that featured the treatment experiences of
former patients and represented, expressly or by implication, that such
experiences represented the typical and ordinary experience of
consumers of proposed respondents' treatment services.
The proposed consent order addresses the alleged misrepresentations
cited in the accompanying complaint by requiring, among other things,
that proposed respondents possess a reasonable basis consisting of
competent and reliable evidence for any future claims regarding
survivorship or cure rates. When appropriate the order would require
that such evidence be competent and reliable scientific evidence.
Additionally, under the order, any efficacy claims for any modality
that purports to treat or mitigate cancer or its attendant symptoms
must also be substantiated with competent and reliable scientific
evidence.
The order further prohibits proposed respondents from
misrepresenting that any independent organization has approved any
treatment regimen for cancer. The order also requires that any future
claims containing consumer endorsements or testimonials either
represent the typical and ordinary experience of consumers of proposed
respondents' services or contain a clear and prominent statement
referring to the limited applicability of the endorser's experience.
Finally, the order requires competent and reliable scientific evidence
for any representation about the performance, safety, or benefits of
any modality that purports to treat or mitigate cancer, its attendant
symptoms or attendant diseases.
The purpose of this analysis is to facilitate public comment on the
proposed order, and 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.
[FR Doc. 96-7293 Filed 3-25-96; 8:45 am]
BILLING CODE 6750-01-M
