[Federal Register Volume 59, Number 99 (Tuesday, May 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12622]
[[Page Unknown]]
[Federal Register: May 24, 1994]
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FEDERAL TRADE COMMISSION
[File No. 912-3123]
Lifestyle Fascination, Inc., et al.; Proposed Consent Agreement
With Analysis to Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed 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, among other things, a New Jersey-based corporation, its
owner, and its general manager from making specified false
representations for five products (a gasoline additive, an automobile
retrofit device, an electric stimulation device, an electric
acupuncture device, and pinhole eyeglasses) advertised in their
catalog. It would also prohibit the respondents from making any claim
regarding the performance, safety, attributes, benefits, or efficacy of
the electric and electronic products they market unless they possess
competent and reliable evidence that substantiates the representation.
In addition, the consent agreement would prohibit the respondents from
misrepresenting the existence, contents, validity, results,
conclusions, or interpretations of any test of study.
DATES: Comments must be received on or before July 25, 1994.
ADDRESSES: Comments should be directed to: FTC/Office of the Secretary,
room 159, 6th St. and Pa. Ave. NW., Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT:
Joel Winston, FTC/S-4002, Washington, DC 20580, (202) 326-3153.
SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Sec. 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
Sec. 4.9(b)(6)(ii) of the Commission's Rules of Practice (16 CFR
4.9(b)(6)(ii)).
In the matter of Lifestyle Fascination, Inc., a corporation; Eli
Zabare, individually and as an officer of said corporation, and
Simon Pantierer, individually.
Agreement Containing Consent Order to Cease and Desist
The Federal Trade Commission, having initiated an investigation of
certain acts and practices of Lifestyle Fascination, Inc., a
corporation, and Eli Zabare, individually and as an officer of said
corporation, and Simon Pantierer, individually (``proposed
respondents''), and it now appearing that proposed respondents are
willing to enter into an agreement containing an order to cease and
desist from the acts and practices being investigated,
It Is Hereby Agreed by and between Lifestyle Fascination, Inc., by
its duly authorized officer, and Eli Zabare, individually and as an
officer of said corporation, and Simon Pantierer, individually, and
their attorney, and counsel for the Federal Trade Commission that:
1. Proposed respondent Lifestyle Fascination, 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 principal place of
business at 12 Progress Place, Jackson, New Jersey 08527.
Proposed respondent Eli Zabare is the owner and sole officer of
Lifestyle Fascination, Inc. He formulated, directed, and controlled the
acts and practices of said corporation. His business address is 12
Progress Place, Jackson, New Jersey 08527.
Proposed respondent Simon Pantierer is the general manager of
Lifestyle Fascination, Inc. He formulated, directed, and controlled the
acts and practices of said corporation. His business address is 12
Progress Place, Jackson, New Jersey 08527.
2. Proposed respondents admit all the jurisdictional facts set
forth in the draft of complaint here attached.
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; 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
the complaint contemplated hereby, 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 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 this proceeding.
5. This agreement is for settlement purposes only and does not
constitute an admission by proposed respondents 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 the
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 Sec. 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 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 U.S. Postal
Service of the decision containing the agreed-to order to proposed
respondents' addresses as stated in this agreement shall constitute
service. Proposed respondents waive any right they might 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 respondents have read the complaint and the order
contemplated hereby. They understand that once the order has been
issued, they will be required to file one or more compliance reports
showing 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 Lifestyle Fascination, Inc., a
corporation, its successors and assigns, and its officers, Eli Zabare,
individually and as an officer of said corporation, and Simon
Pantierer, individually, and respondents' agents, representatives and
employees, directly or through any corporation, subsidiary, division or
other device, in connection with the advertising, promotion, offering
for sale, sale or distribution of Fuelon, or any substantially similar
fuel additive device, in or affecting commerce, as ``commerce'' is
defined in the Federal Trade Commission Act, do forthwith cease and
desist from representing, in any manner, directly or by implication,
that:
A. Under normal driving conditions, when used as directed,
consumers can increase their gas mileage by between 15% and 40% by
adding such product to their gas tanks; or
B. The use of such product will ensure that a car will pass
government emissions inspections.
II
It Is Further Ordered that respondents Lifestyle Fascination, Inc.,
a corporation, its successors and assigns, and its officers, Eli
Zabare, individually and as an officer of said corporation, and Simon
Pantierer, individually, and respondents' agents, representatives and
employees, directly or through any corporation, subsidiary, division or
other device, in connection with the advertising, promotion, offering
for sale, sale or distribution of the Vitalizer, or any substantially
similar automobile retrofit device, in or affecting commerce, as
``commerce'' is defined in the Federal Trade Commission Act, do
forthwith cease and desist from representing, in any manner, directly
or by implication, that:
A. Under normal driving conditions, when used as directed,
consumers will increase their gas mileage by 23%, or up to 23%, when
such product is installed in their automobiles; or
B. Under normal driving conditions, when used as directed,
consumers can obtain reduced exhaust emissions of 90%, or up to 90%,
when such product is installed in their automobiles.
III
It Is Further Ordered that respondents Lifestyle Fascination, Inc.,
a corporation, its successors and assigns, and its officers, Eli
Zabare, individually and as an officer of said corporation, and Simon
Pantierer, individually, and respondents' agents, representatives and
employees, directly or through any corporation, subsidiary, division or
other device, in connection with the advertising, promotion, offering
for sale, sale or distribution of Aerobic Eye Exercise Glasses, or any
other eyeglasses with opaque lenses and multiple pinholes, in or
affecting commerce, as ``commerce'' is defined in the Federal Trade
Commission Act, do forthwith cease and desist from representing, in any
manner, directly or by implication, that:
A. Wearing such product results in long-term improvement in the
vision of persons with vision problems; or
B. Such product, while being worn, is an adequate substitute for
prescription glasses or contact lenses to improve vision.
IV
It Is Further Ordered that respondents Lifestyle Fascination, Inc.,
a corporation, its successors and assigns, and its officers, Eli
Zabare, individually and as an officer of said corporation, and Simon
Pantierer, individually, and respondents' agents, representatives and
employees, directly or through any corporation, subsidiary, division or
other device, in connection with the advertising, promotion, offering
for sale, sale or distribution of any product in or affecting commerce,
as ``commerce'' is defined in the Federal Trade Commission Act, do
forthwith cease and desist from misrepresenting, directly or by
implication, the existence, contents, validity, results, conclusions or
interpretations of any test or study.
V
It Is Further Ordered that respondents Lifestyle Fascination, Inc.,
a corporation, its successors and assigns, and its officers, Eli
Zabare, individually and as officer of said corporation, and Simon
Pantierer, individually, and respondents' agents, representatives and
employees, directly or through any corporation, subsidiary, division or
other device, in connection with the advertising, promotion, offering
for sale, sale or distribution of any automotive fuel economy product,
including but not limited to any automobile gasoline additive, engine
oil additive, or automobile retrofit device (as ``automobile retrofit
device'' is defined in section 511 of the Motor Vehicle Information and
Cost Savings Act, 15 U.S.C. 2011) in or affecting commerce, as
``commerce'' is defined in the Federal Trade Commission Act, do
forthwith cease and desist from representing, directly or by
implication, that use of such device will or may result in fuel economy
improvement, unless, and only to the extent, respondents possess and
rely on competent and reliable scientific tests which substantiate the
representations, such as:
A. Chassis dynamometer tests done according to procedures that
simulate typical urban and highway driving patterns, such as the then
current urban and highway driving test schedules established by the
Environmental Protection Agency; or
B. Track or road tests done according to procedures that simulate
urban and highway driving patterns, such as the then current procedures
established in the Society of Engineers J1082b test protocol.
Respondents shall, when using the results of any tests required by
this part, clearly and conspicuously disclose the limitations upon the
applicability of the results to any automobile, truck, recreational
vehicle, or other motor vehicle. Where the results of such tests are
used in connection with the representation of fuel economy improvement
expressed in miles per gallon (or liter), miles per tankful, or
percentage, or where the representation of the benefit is expressed as
a monetary saving in dollars or percentages, all advertising and other
promotional materials that contain the representation must also clearly
and conspicuously disclose the following disclaimer: ``REMINDER: Your
actual saving may vary. It depends on the kind of driving you do, how
you drive, and the condition of your car.''
VI
It Is Further Ordered that respondents Lifestyle Fascination, Inc.,
a corporation, its successors and assigns, and its officers, Eli
Zabare, individually and as an officer of said corporation, and Simon
Pantierer, individually, and respondents' agents, representatives and
employees, directly or through any corporation, subsidiary, division or
other device, in connection with the advertising, promotion, offering
for sale, sale or distribution of any product in or affecting commerce,
as ``commerce'' is defined in the Federal Trade Commission Act, do
forthwith cease and desist from representing, directly or by
implication, that:
A. Use of such product can or will have any effect on the user's
intelligence; energy levels; muscle strength or tone; weight; mental
concentration; pain; depression or anxiety; sleep patterns or
requirements; short or long term memory; cravings for or withdrawal
symptoms from drugs or alcohol; or any other effect on health or the
structure or function of the human body; or
B. Use of such product can or will have any effect on acceleration,
power, engine condition, exhaust emissions, or any other aspect of
automobile performance;
unless at the time of making such representation, respondents possess
and rely upon competent and reliable scientific evidence that
substantiates such representation. For purposes of this Order,
``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.
VII
It Is Further Ordered that respondents Lifestyle Fascination, Inc.,
a corporation, its successors and assigns, and its officers, Eli
Zabare, individually and as an officer of said corporation, and Simon
Pantierer, individually, and respondents' agents, representatives and
employees, directly or through any corporation, subsidiary, division or
other device, in connection with the advertising, promotion, offering
for sale, sale or distribution of any consumer electric or electronic
product 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, regarding the
performance, safety, attributes, benefits, or efficacy of such product,
unless, at the time of making such representation, respondents possess
and rely upon competent and reliable evidence, which when appropriate,
must be competent and reliable scientific evidence, that substantiates
such representation. Provided that, the terms of this part shall not
apply to the advertising, promotion, offering for sale, sale, or
distribution of any television; videocassette, audiocassette, or
compact disc player or recorder; radio; stereo component; telephone;
shaver; vacuum cleaner; kitchen appliance; hair grooming appliance;
binoculars; exercise equipment; or camera. Further provided that,
nothing in this part shall be construed as exempting from this Order
any product otherwise subject to the terms of any other part of this
Order.
VIII
It Is Further Ordered that respondents Lifestyle Fascination, Inc.,
a corporation, its successors and assigns, and its officers, Eli
Zabare, individually and as an officer of said corporation, and Simon
Pantierer, individually, and respondents' agents, representatives and
employees, directly or through any corporation, subsidiary, division or
other device, in connection with the advertising, promotion, offering
for sale, sale or distribution of any product represented, directly or
by implication, or intended to have any effect on health or the
structure or function of the human body, in or affecting commerce, as
``commerce'' is defined in the Federal Trade Commission Act, do
forthwith cease and desist from representing that any endorsement (as
endorsement is defined in 16 CFR 255.0(b)) of any such product
represents the typical or ordinary experience of members of the public
who use such product, unless such is the fact.
IX
It Is Further Ordered that respondents Lifestyle Fascination, Inc.,
a corporation, its successors and assigns, and its officers, Eli
Zabare, individually and as an officer of said corporation, and Simon
Pantierer, individually, and respondents' agents, representatives and
employees, shall, for three (3) years from the date of the last
dissemination of each representation which is subject to this Order,
maintain and upon reasonable request make available to the Federal
Trade Commission for inspection and copying:
A. All materials that were relied upon by respondent(s) in
disseminating any representation covered by this Order; and
B. All tests, reports, studies, surveys, demonstrations, or other
evidence in any respondent's possession or control that contradict,
qualify, or call into question such representation, or the basis upon
which respondent relied for such representation, including complaints
from consumers.
X
It Is Further Ordered that respondent Lifestyle Fascination, Inc.,
or its successors and assigns, shall:
A. Within thirty (30) days after service of this Order, provide a
copy of this Order to each of its current principals, officers,
directors, and managers, and to all personnel, agents, and
representatives having sales, advertising, or policy responsibility
with respect to the subject matter of this Order; and
B. For a period of five (5) years from the date of entry of this
Order, provide a copy of this Order to each of its principals,
officers, directors, and managers, and to all personnel, agents, and/or
representatives having sales, advertising, or policy responsibility
with respect to the subject matter of this Order within three (3) days
after the person commences his or her responsibilities.
XI
It Is Further Ordered that respondents Eli Zabare and Simon
Pantiere, for a period of ten (10) years from the date of entry of this
Order, notify the Commission within thirty (30) days of the
discontinuance of his present business or employment and of his
affiliation with any new business or employment which involves the sale
of consumer products. Each notice of affiliation with any new business
or employment shall include respondent's new business address and
telephone number, current home address, and a statement describing the
nature of the business or employment and his duties and
responsibilities.
XII
It Is Further Ordered that respondents Lifestyle Fascination, Inc.,
its successors and assigns, and its officers, Eli Zabare, individually
and as an officer of said corporation, and Simon Pantierer,
individually, shall notify the Federal Trade Commission at least thirty
(30) days prior to any proposed change in the corporate respondent,
including but not limited to dissolution, assignment or sale resulting
in the emergence of a successor corporation, the creation or
dissolution of subsidiaries or affiliates, or any other change in the
corporation which may affect compliance obligations arising under this
Order.
XIII
It Is Further Ordered that respondents Lifestyle Fascination, Inc.,
its successors and assigns, and its officers, Eli Zabare, individually
and as an officer of said corporation, and Simon Pantierer,
individually, shall, within sixty (60) days after service of this
Order, and at such other times as the Federal Trade 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.
Analysis of Proposed Consent Order to Aid Public Comment
The Federal Trade Commission has accepted an agreement to a
proposed consent order from Lifestyle Fascination, Inc.
(``Lifestyle''), Eli Zabare, an officer of Lifestyle, and Simon
Pantierer.
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 comments received and will decide whether it should
withdraw from the agreement or make final the agreement's proposed
order.
This matter concerns five products advertised by the respondents in
the Lifestyle Fascination catalog: Fuelon, a gasoline additive; the
Vitalizer an automobile retrofit device; the Brain Tuner, a cranio-
electric stimulation device, the Rhythm, an electronic acupuncture
device; and the Aerobic Eye Exercise Glasses, pinhole eyeglasses.
The Commission's proposed complaint alleges that the respondents
falsely represented that the addition of Fuelon to gasoline would
increase a car's gas mileage by between 15% and 40% and ensure that
cars pass government emissions inspections. The proposed complaint
further alleges that the respondents falsely represented that they
relied upon a reasonable basis for those claims, and for their further
representation that Fuelon would provide the benefits of an engine
tune-up.
The proposed complaint alleges that the respondents falsely
represented that the Vitalizer would increase gas mileage by up to 23%;
decrease automobile emissions by up to 90%; and that tests, research,
and expert evaluations proved these claims. The complaint further
alleges that the respondents falsely represented that they relied upon
a reasonable basis for these representations, and for their further
representation that use of the Vitalizer would increase engine power.
The proposed complaint further alleges that, in advertising the
Brain Tuner, the respondents falsely represented that they relied upon
a reasonable basis for their representations that use of the Brian
Tuner would increase one's I.Q., increase energy levels, improve
concentration, control pain, reduce depression and anxiety, normalize
sleep patterns and reduce sleep requirements, improve memory, and
reduce cravings for and withdrawal symptoms from drugs and alcohol. The
proposed complaint further alleges that the respondents falsely
represented that scientific studies proved that use of the Brain Tuner
would produce these results.
The proposed complaint further alleges that, in advertising the
Rhythm, the respondents falsely represented that they relied upon a
reasonable basis for their representations that use of the Rhythm would
relieve muscle, digestive, and nervous ailments; tone muscles; help the
user lose weight; and relieve backaches, headaches, muscle pain, stiff
shoulders, insomnia, and fatigue.
With respect toe the respondent's advertising for the Aerobic Eye
Exercise Glasses, the proposed complaint alleges that the respondents
falsely represented that wearing the glasses results in long-term
vision improvement, that they are an adequate substitute for
prescription glasses or contact lenses, and that the testimonial
contained in the advertisement reflected the typical or ordinary
experience of consumers who have used the product. The proposed
complaint further alleges that the respondents falsely represented that
they relied upon a reasonable basis for these representations.
The proposed consent order contains provisions designed to prevent
the respondents from engaging in similar acts and practices in the
future. Parts I, II, and III of the proposed order prohibit the
respondents from making the representations challenged as false in the
proposed complaint for Fuelon, Vitalizer, and the Aerobic Eye Exercise
Glasses.
Part IV of the proposed order prohibit the respondents from
misrepresenting the existence, contents validity, results, conclusions,
or interpretations of any test or study.
Part V of the proposed order prohibits the respondents from
representing that use of any automotive fuel economy product will
result in fuel economy improvement unless they rely upon competent ad
reliable scientific tests which substantiate such representations. This
part of the order lists two test procedures as examples of ``competent
and reliable scientific tests`` of automotive fuel economy products and
further requires the respondents to disclose any limitations upon the
applicability of any test results to other vehicles. This part also
requires the respondents to include the following disclaimer when
making certain fuel economy improvement claims: ``REMINDER: Your actual
saving may vary. It depends on the kind of driving you do how you
drive, and the condition of your car.''
Part IV of the proposed order prohibits the respondents from
representing that the use of any product will have any effect on
specific medical conditions or any other effect on health or the
structure or function of the human body, or that any product will have
any effect on automobile performance, unless they possess competent and
reliable scientific evidence that substantiates the representation.
Part VII of the proposed order prohibits the respondents from
making any representation for any consumer electric or electronic
product regarding its performance, safety, attributes, benefits or
efficacy unless they possess competent and reliable evidence, which,
when appropriate, must be competent and reliable scientific evidence
that substantiates the representation. The terms of Part VII do not
apply to representations made for a specified list of products;
however, these products are not exempted from the other terms of the
order.
Part VIII of the proposed order prohibits the respondents from
misrepresenting that any endorsement for a product represented or
intended to have any effect on health or the structure or function of
the human body reflects the typical or ordinary experience of members
of the public who use the product.
Parts IX, X, XI, XII, and XIII relate to the respondents'
obligation to maintain records, distribute the order to current and
future officers and employees, notify the Commission of changes in
business or corporate structure, and file compliance reports with the
Commission.
The purpose of this analysis is to facilitate the 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 in any
way their terms.
Donald S. Clark,
Secretary.
[FR Doc. 94-12622 Filed 5-23-94; 8:45 am]
BILLING CODE 6750-01-M
