[Federal Register Volume 59, Number 87 (Friday, May 6, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10948]
[[Page Unknown]]
[Federal Register: May 6, 1994]
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
[File No. 922 3373]
Mia Rose Products, Inc., 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, a California-based corporation and its
officer from making any representation about the efficacy or
performance of any air cleaning, air freshening, or insecticidal
product, unless the respondents possess and rely upon competent and
reliable scientific evidence to substantiate the representation.
DATES: Comments must be received on or before July 5, 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:Jeffrey Klurfeld or Linda Badger, FTC/
San Francisco Regional Office, 901 Market St., suite 570, San
Francisco, CA. 94103. (415) 744-7920.
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
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
The Federal Trade Commission, having initiated an investigation of
certain acts and practices of Mia Rose Products, Inc., and Mia Palencar
(``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 respondents and by their duly
authorized officers, and counsel for the Federal Trade Commission that:
1. Proposed respondent Mia Rose Products, Inc. is a corporation
organized, existing, and doing business under and by virtue of the laws
of the State of California. The principal place of business of this
corporation is located at 3555-B Harbor Gateway South, Costa Mesa,
California 92626.
Proposed respondent Mia Palencar is an officer of the corporate
respondent. She formulates, directs, and controls the acts and
practices of the corporate respondent and her address is the same as
that of corporate respondent.
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. All claims 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
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 respondents of facts, other than
jurisdictional facts, or of violations of law as alleged in the draft
complaint here attached.
6. This agreement contemplates that it 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 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 Mia Rose Products, Inc., a
corporation, its successors and assigns, and its officers, and Mia
Palencar, individually and as an officer of said corporation, and
respondents' agents, representatives, and employees, directly or
through any corporation, subsidiary, division or other device, in
connection with the manufacturing, labelling, advertising, promotion,
offering for sale, sale or distribution of Air Therapy, Pet Air or any
substantially similar product 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. Such product is effective in cleaning or purifying indoor air.
B. Such product is more effective in cleaning or purifying indoor
air than conventional air cleaning products.
C. Spraying such product into the air eliminates smoke.
D. Spraying such product into the air eliminates pollen.
E. Spraying such product into the air eliminates airborne bacteria.
F. Spraying such product into the air eliminates household insects.
G. Spraying such product into the air eliminates pet dander.
H. Spraying such product into the air eliminates rather than masks
odors.
For the purposes of this Order, ``substantially similar product''
shall mean any air cleaning or air freshening product which contains d-
limonene as its sole active ingredient.
II
It is further ordered that respondents, Mia Rose Products, Inc., a
corporation, its successors and assigns, and its officers, and Mia
Palencar, individually and as an officer of said corporation, and
respondents' agents, representatives and employees, directly or through
any corporation, subsidiary, division or other device, in connection
with the manufacturing, labelling, advertising, promotion, offering for
sale, sale, or distribution of any air cleaning, air freshening, or
insecticidal product 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,
the efficacy or performance of any such product, unless such
representation is true, and 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. 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 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.
III
It is further ordered that for five (5) 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 provisions of this Order shall not apply
to the printing on cans of Air Therapy or Pet Air which were
manufactured prior to September 1, 1993, and shipped by respondents to
distributors or retailers prior to four (4) months from the date of
issuance of this Order.
V
It is further ordered that respondents shall notify the Commission
at least thirty (30) days prior to any proposed change in the corporate
respondent such as dissolution, assignment or sale resulting in the
emergence of a successor corporation, the creation or dissolution or
subsidiaries, or any other change in the corporation which may affect
compliance obligations arising out of this Order.
VI
It is further ordered that the individual respondent shall, for a
period of five (5) years after the date of service of this Order upon
her, promptly notify the Commission, in writing, of her discontinuance
of her present business or employment and of her affiliation with a new
business or employment. For each such new affiliation, the notice shall
include the name and address of the new business or employment, a
statement of the nature of the new business or employment, and a
description of respondent's duties and responsibilities in connection
with the new business or employment.
VII
It is further ordered that the corporate respondent shall, within
ten (10) days from the date of service of this Order upon them,
distribute a copy of this Order to each of its officers, agents,
representatives, independent contractors, and employees involved in the
preparation and placement of advertisements or promotional materials,
or is in communication with customers or prospective customers, or who
have any responsibilities with respect to the subject matter of this
Order; and for a period of five (5) years, from the date of issuance of
this Order, distribute a copy of this Order to all of respondent's
future such officers, agents, representatives, independent contractors,
and employees.
VIII
It is further ordered that respondents shall, within sixty (60)
days from the date of service of this Order upon them, 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.
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 respondents Mia Rose
Products, Inc., a California corporation, and Mia Rose Palencar,
individually and as an officer of the corporation.
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 the comments received and will decide whether it should
withdraw from the agreement and take other appropriate action or make
final the agreement's proposed order.
This matter concerns two products, named ``Air Therapy'' and ``Pet
Air,'' sold by Mia Rose Products, Inc. (``the company''). Air Therapy
and Pet Air are air sprays made from the essential oils of citrus fruit
and/or herbs. These two products have identical ingredients, and are
both sold for their alleged air freshening, air cleaning and
insecticidal effects. The Commission's complaint charges that
respondents' advertising contained false and unsubstantiated
representations that these products are effective in eliminating indoor
air pollutants and household insects. Specifically, the complaint
alleges that respondents falsely represented that: (1) These products
are effective in cleaning or purifying indoor air; (2) these products
are more effective in cleaning or purifying indoor air than
conventional air cleaning products; (3) spraying these products into
the air eliminates smoke; (4) spraying these products into the air
eliminates pollen; (5) spraying these products into the air eliminates
airborne bacteria; (6) spraying Pet Air into the air eliminates pet
dander; (7) spraying Air Therapy into the air eliminates household
insects; and (8) spraying these products into the air eliminates,
rather than masks, odors.
The proposed consent order contains provisions designed to remedy
the violations charged and to prevent the respondents from engaging in
similar acts and practices in the future. Part I of the proposed order
would prohibit the company from making any of the false claims
delineated above for Air Therapy, Pet Air, or any products with
substantially similar ingredients.
Part II of the proposed order includes broad fencing-in relief,
requiring the respondents to cease and desist from representing the
efficacy or performance of any air cleaning, air freshening, or
insecticidal product unless such representation is true, and at the
time of making such representation, Mia Rose possesses and relies upon
competent and reliable evidence, which when appropriate must be
competent and reliable scientific evidence.
Part IV of the proposed order is a provision that allows the
company a period of four months from the date the proposed order
becomes final before it is obligated to re-word its labeling on its
current inventory of Air Therapy and Pet Air cans. All other provisions
of the order become effective immediately upon the Commission's
issuance of the order as final.
The proposed order also requires the respondents to maintain
materials relied upon to substantiate claims covered by the order; to
provide a copy of the consent agreement to all employees or
representatives involved in the preparation and placement of the
company's advertisements, or in communication with the company's
customers or prospective customers; to notify the Commission of any
changes in corporate structure that might affect compliance with the
order; to notify the Commission of certain changes in the business or
employment of the named individual respondent; and to file one or more
reports detailing compliance with the order.
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.
[FR Doc. 94-10948 Filed 5-5-94; 8:45 am]
BILLING CODE 6750-01-M
