[Federal Register Volume 61, Number 45 (Wednesday, March 6, 1996)]
[Notices]
[Pages 8939-8941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5226]
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FEDERAL TRADE COMMISSION
[File No. 952-3014]
Mrs. Fields Cookies, 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
prohibit the Salt Lake City, Utah-based corporation from
misrepresenting the amount of fat, saturated fat, cholesterol, or
calories in any bakery food products. The consent agreement settles
allegations that Mrs. Fields touted a cookie line as ``low fat'' in
advertising and promotional materials when the fat content of two
cookies in the line exceeded the amount of fat that qualifies as ``low
fat'' under Food and Drug Administration regulations.
DATES: Comments must be received on or before May 6, 1996.
ADDRESSES: Comments should be directed to: FTC/Office of the Secretary,
Room 159, 6th Street and Pennsylvania Avenue NW., Washington, D.C.
20580.
FOR FURTHER INFORMATION CONTACT:
Phoebe D. Morse, Boston Regional Office, Federal Trade Commission, 101
Merrimac Street, Suite 810, Boston, Massachusetts 02114-4719, (617)
424-5960.
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)).
In the matter of: Mrs. Fields Cookies, Inc., a corporation. File
No. 952 3014.
Agreement Containing Consent Order To Cease and Desist
The Federal Trade Commission having initiated an investigation of
certain acts and practices of Mrs. Fields Cookies, Inc., a corporation,
hereinafter sometimes referred to as proposed respondent, and it now
appearing that proposed respondent is willing to enter 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 Mrs. Fields Cookies, Inc., by
its duly authorized officer and attorney, and counsel for the Federal
Trade Commission that:
1. Proposed respondent Mrs. Fields Cookies, Inc. 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 located at 462 West Bearcat Drive, Salt Lake City, UT 84115.
2. Proposed respondent admits all the jurisdictional facts set
forth in the attached draft complaint.
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 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 respondent, 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.
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 attached draft complaint, or that the facts
as alleged in the attached draft complaint, other than jurisdictional
facts, are true.
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 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 attached draft complaint 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 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. It 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 Mrs. Fields Cookies, 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
[[Page 8940]]
any food in or affecting commerce, as ``food'' and ``commerce'' are
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 bakery food product, whether cooked or uncooked. If any
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 food
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:
A. All materials that were relied upon in disseminating such
representation; and
B. All test, 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, to each manager of its company-owned
and franchised stores, and to each of its officers, agents,
representatives, and employees engaged in the preparation or placement
of advertisements or promotional materials covered by this Order.
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.
VII
This Order will terminate twenty (20) years from the date of its
issuance, or twenty (20) 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 affect the duration of:
A. Any paragraph of this Order that terminates in less than twenty
(20) 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 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
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 from Mrs. Fields Cookies,
Inc. (``Mrs. Fields'').
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 claims made by Mrs. Fields in its advertising
for three new cookies it introduced in 1994. The Commission's complaint
charges Mrs. Fields with engaging in unfair or deceptive practices in
connection with the advertising these cookies. According to the
complaint, Mrs. Fields falsely represented that all three of the new
cookies are low fat.
The consent order contains provisions designed to remedy the
violations charged and to prevent Mrs. Fields from engaging in similar
deceptive and unfair acts and practices in the future.
Part I of the order prohibits Mrs. Fields from misrepresenting the
existence or amount of fat, saturated fat, cholesterol or calories in
any bakery food product, whether cooked or uncooked. Part I also
requires that any representation covered by this 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 Mrs. Fields to maintain copies of
all materials relied upon in making any representation covered by the
order.
Part IV of the order requires Mrs. Fields to notify the Commission
of any changes in corporate structure that might affect compliance with
the order.
Part V of the order requires Mrs. Fields to distribute copies of
the order to its operating divisions and to various officers, agent and
representatives of Mrs. Fields.
Part VI of the order requires Mrs. Fields to file with the
Commission one or more reports detailing compliance with the order.
Part VII of the order is a ``sunset'' provision, dictating that the
order will terminate twenty (20) 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.
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
[[Page 8941]]
the agreement and proposed order, or to modify any of their terms.
Donald S. Clark,
Secretary.
[FR Doc. 96-5226 Filed 3-5-96; 8:45 am]
BILLING CODE 6750-01-M
