[Federal Register Volume 60, Number 107 (Monday, June 5, 1995)]
[Notices]
[Pages 29601-29603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13652]
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
[File No. 942 3044]
The Eskimo Pie Corporation; 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 Virginia-based corporation from
misrepresenting the existence or amount of calories or any other
nutrient or ingredient in any frozen dessert product and from falsely
claiming that any frozen dessert product has been approved, endorsed or
recommended by any person, group or organization.
DATES: Comments must be received on or before August 4, 1995.
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: C. Steven Baker or Barbara Di Giulio,
FTC/Chicago Regional Office, Federal Trade Commission, 55 East Monroe
St., Suite 1860, Chicago, IL 60603, (312) 353-8156.
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)).
Agreement Containing Consent Order To Cease and Desist
In the Matter of The Eskimo Pie Corporation, a corporation.
The Federal Trade Commission having initiated an investigation of
certain acts and practices of The Eskimo Pie Corporation, a
corporation, and it how appearing that The Eskimo Pie Corporation,
hereinafter sometimes referred to as 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 that by and between The Eskimo Pie Corporation,
by its duly authorized officer and its attorneys, and counsel for the
Federal Trade Commission that:
1. Proposed respondent The Eskimo Pie Corporation is a Delaware
corporation, with its office and principal place of business located at
901 Moorefield Park Drive, Richmond, Virginia 23236.
2. Proposed respondent admits all the jurisdictional facts set
forth in the draft of 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;
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.
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 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 draft of complaint, or that the facts as
alleged in the draft of 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 respondents, (1) issue its complaint corresponding in form and
substance with the draft of complaint and its decision containing the
following order to cease and desist in disposition of the proceeding,
and (2) make the 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 right 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.
[[Page 29602]]
Order
I
It is ordered that respondent The Eskimo Pie Corporation, 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, labelling, advertising, promotion, offering for sale,
sale, or distribution of any frozen dessert 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,
logos, symbols, or any other means:
A. The existence or amount of calories or any other nutrient or
ingredient in any such product; or
B. That such product has been approved, endorsed or recommended by
any person, group or organization.
II
It is ordered that respondent The Eskimo Pie Corporation, 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, labelling, advertising, promotion, offering for sale,
sale, or distribution of any frozen dessert product in or affecting
commerce, ``commerce'' is defined in the Federal Trade Commission Act,
do forthwith cease and desist from failing to disclose clearly and
prominently in any advertisement or promotional material that
represents, in any manner, directly or by implication, through
numerical or descriptive terms, logos, symbols, or any other means,
that such product is a useful or appropriate part of a diabetic's diet:
A. The fat content per serving of such product expressed as 1) the
number of grams and 2) the percentage of the ``Maximum Daily Value'',
unless such product is low in total fat;
B. The saturated fat content per serving of such product expressed
as 1) the number of grams and 2) the percentage of the ``Maximum Daily
Value'' of the saturated fat, unless such product is low in saturated
fat; and
C. The statement ``Not a reduced calorie food'' when such a
statement would be required on the label pursuant to regulations
promulgated by the Food and Drug Administration.
The statements required by subparagraphs A.1 and A.2 and B.1 and
B.2 of this Part shall appear in close proximity. For purposes of this
Part, the term ``Maximum Daily Value'' shall mean the daily reference
value or other daily intake limit for total fat or saturated fat
established in an effective final regulation of the Food and Drug
Administration. For purposes of this Part, ``low in fat'' and ``low in
saturated fat'' shall mean the qualifying amount for such terms as set
forth in regulations promulgated by the Food and Drug Administration.
For purposes of this Order, ``clearly and prominently'' shall mean
as follows:
1. In a television or videotape advertisement, the disclosure shall
be presented simultaneously in both the audio and video portions of the
advertisement. The audio disclosure shall be delivered in a volume and
cadence and for a duration sufficient for an ordinary consumer to hear
and comprehend it. The video disclosure shall be of a size and shade,
and shall appear on the screen for a duration, sufficient for an
ordinary consumer to read and comprehend it;
2. In a print advertisement, the disclosure shall be in close
proximity to the representation that triggers the disclosure in at
least twelve (12) point type; and
3. In a radio advertisement, the disclosure shall be delivered in a
volume and cadence and for a duration sufficient for an ordinary
consumer to hear and comprehend it.
III
Nothing in this Order shall prohibit respondent from making any
representation that is specifically permitted in labeling for any
product by regulations promulgated by the Food and Drug Administration
pursuant to the Nutrition Labeling and Education Act of 1990.
IV
It is further ordered that for five (5) 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, including correspondence from
consumers.
V
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.
VI
It is further ordered that respondent shall distribute a copy of
this Order to each of its operating divisions and to each of its
officers, agents, representatives, employees, and licensees engaged in
the preparation or placement of advertisements or other materials
covered by this Order.
VII
It is further ordered that respondent, or its successors and
assigns, shall, for three (3) years after the date of the last
dissemination of the representation to which they pertain, maintain and
upon request make available to the Federal Trade Commission for
inspection and copying all advertisements containing any representation
covered by this Order.
VIII
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 to a
proposed consent order from The Eskimo Pie Corporation (Eskimo Pie).
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 or make final the agreement's proposed
order.
This matter concerns claims made by Eskimo Pie in its advertising
for its Sugar Freedom frozen dessert products.
The Commission's complaint in this matter charges Eskimo Pie with
engaging in unfair or deceptive practices in connection with its
advertising of its [[Page 29603]] Sugar Freedom frozen dessert
products. According to the complaint Eskimo Pie falsely represented
that its Sugar Freedom frozen dessert products are significantly
reduced in calories compared with comparable foods and that they are
low in calories.
The complaint also alleges that Eskimo Pie falsely represented that
the American Diabetes Association has approved or endorsed Eskimo Pie
Sugar Freedom frozen dessert products.
Finally, the complaint alleges that Eskimo Pie represented that its
Sugar Freedom frozen dessert products are particularly useful or
appropriate in the diabetics's diet, but failed to disclose that many
of these products are high in total fat and saturated fat and are not
low or reduced in calories.
The consent order contains provisions designed to remedy the
violations charged and to prevent Eskimo Pie from engaging in similar
deceptive and unfair acts and practices in the future.
Part I of the order prohibits Eskimo Pie from misrepresenting the
existence or amount of calories or any other nutrient or ingredient in
any frozen dessert product; or that such product has been approved,
endorsed or recommended by any person, group or organization.
Part II of the order requires that when Eskimo Pie represents that
any frozen dessert product is a useful or appropriate part of a
diabetic's diet, then it must disclose a) the total fat content if the
product is not low in fat; b) the saturated fat content if the product
is not low in saturated fat; and c) that the product is not a reduced
calorie product when the FDA would require a similar disclosure in
labelling.
Part III of the order provides that representations that would be
specifically permitted in food labeling, under regulations issued by
FDA pursuant to the Nutrition Labeling and Education Act of 1990, are
not prohibited by the order.
Part IV of the order requires Eskimo Pie to maintain copies of all
materials relied upon in making any representation covered by the
order.
Part V of the order requires Eskimo Pie to notify the Commission of
any changes in corporate structure that might affect compliance with
the order.
Part VI of the order requires Eskimo Pie to distribute copies of
the order to its operating divisions and to various officers, agents
and representatives of Eskimo Pie.
Part VII of the order requires Eskimo Pie to maintain copies of all
advertisements containing representations covered by the order.
Part VIII of the order requires Eskimo Pie to file with the
Commission one or more 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. 95-13652 Filed 6-2-95; 8:45 am]
BILLING CODE 6750-01-M
