[Federal Register Volume 61, Number 160 (Friday, August 16, 1996)]
[Notices]
[Pages 42616-42619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20919]
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FEDERAL TRADE COMMISSION
[File No. 942-3332]
RBR Productions, Inc.; Richard Rosenberg; 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 or deceptive acts or practices and unfair methods of
competition, this consent agreement, accepted subject to final
Commission approval, would prohibit, among other things, the
Ridgefield, New Jersey-based beauty salon products supplier from making
specific misrepresentations about the safety of its disinfectant
products and would require the firm to have evidence to back certain
other human safety and environmental benefit claims. The consent
agreement settles allegations stemming from advertising and promotional
materials for RBR's disinfectants, ``Let's Dance'' and ``Let's Touch,''
touted as non-toxic or non-corrosive to skin and eyes, and for its
``Let's Go'' drying spray.
DATES: Comments must be received on or before October 15, 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: Lee Peeler, Federal Trade Commission,
6th and Pennsylvania Avenue, NW, S-4002, Washington, DC 20850. (202)
326-3090. Janet Evans, Federal Trade Commission, 6th and Pennsylvania
Avenue, NW, S-4002, Washington, DC 20850. (202) 326-2125.
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
The Federal Trade Commission having initiated an investigation of
certain acts and practices of RBR Productions, Inc., a corporation, and
Richard Rosenberg, individually and as an officer and director of said
corporation, hereinafter sometimes referred to as 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 use
of the acts and practices being investigated,
It is hereby agreed by and between RBR Productions, Inc., by its
duly authorized officer, and Richard Rosenberg, individually and as an
officer and director of said corporation, and counsel for the Federal
Trade Commission that:
1. Proposed respondent RBR Productions, Inc. is a corporation
organized, existing, and doing business under and by virtue of the laws
of the state of New Jersey, with its office and principal place of
business located at 1010 Hoyt Avenue, Ridgefield, New Jersey 07657.
From time to time, RBR Productions, Inc. does business under the name
of Isabel Cristina Beauty Care Products.
Proposed respondent Richard Rosenberg is an officer and director of
RBR Productions, Inc. He formulates, directs, and controls the
policies, acts, and practices of said corporation and his office and
principal place of business is the same as that of said corporation.
2. Proposed respondents admit all the jurisdictional facts set
forth in the draft of 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.
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 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
of complaint.
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 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
respondents' address as stated in this agreement shall constitute
[[Page 42617]]
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 proposed complaint and order
contemplated hereby. They 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
Definitions
For the purposes of this Order:
1. ``Competent and reliable scientific evidence'' shall mean tests,
analyses, research, studies, or other evidence based upon 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;
2. ``Volatile organic compound'' (``VOC'') shall mean any compound
of carbon which participates in atmospheric photochemical reactions as
defined by the U.S. Environmental Protection Agency at 40 C.F.R.
Sec. 51.100(s), and as subsequently amended. When the final rule was
promulgated, 57 Fed. Reg. 3941 (February 3, 1992), the EPA definition
excluded carbon monoxide, carbon dioxide, carbonic acid, metallic
carbides or carbonates, ammonium carbonate and certain listed compounds
that EPA has determined are of negligible photochemical reactivity.
I
It is ordered that respondents, RBR Productions, Inc., a
corporation, its successors and assigns, and its officers, and Richard
Rosenberg, individually and as an officer and director of said
corporation, and respondents' agents, representatives, and employees,
directly or through any partnership, corporation, subsidiary, division,
or other device, in connection with the manufacturing, labeling,
advertising, promotion, offering for sale, sale, or distribution of
Let's Dance and Let's Touch disinfectants, 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, that:
A. Let's Dance concentrate is non-corrosive to skin or eyes, non-
toxic, or does not pose a risk of adverse health effects;
B. Let's Touch concentrate is non-toxic or does not pose a risk of
adverse health effects; or
C. Let's Dance and Let's Touch use dilutions are classified as non-
toxic under the Federal Hazardous Substances Act regulations.
II
It is further ordered that respondents, RBR Productions, Inc., a
corporation, its successors and assigns, and its officers, and Richard
Rosenberg, individually and as an officer and director of said
corporation, and respondents' agents, representatives, and employees,
directly or through any partnership, corporation, subsidiary, division,
or other device:
A. In connection with the manufacturing, labeling, advertising,
promotion, offering for sale, sale, or distribution of Let's Dance and
Let's Touch disinfectants, 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:
1. Let's Dance or Let's Touch use dilutions are non-toxic or do not
pose a risk of adverse health effects;
2. Let's Dance or Let's Touch concentrates or use dilutions are
less toxic than quaternary ammonium compound disinfectants or any other
disinfectant or product;
3. Let's Dance is biodegradable;
4. Let's Dance is safe for the environment after ordinary use; and
B. In connection with the manufacturing, labeling, advertising,
promotion, offering for sale, sale, or distribution of Let's Go spray
or any other product containing any volatile organic compound, through
the use of such terms as ``environmental formula,'' ``environmental
formula, freon free, ozone friendly,'' ``environmental formula, will
not harm the ozone, contains no freon, chlorofluorocarbons, methylene
chloride, or 1,1,1-trichloroethane,'' or any other term or expression,
that any such product will not harm the environment; and
C. In connection with the manufacturing, labeling, advertising,
promotion, offering for sale, sale, or distribution of any disinfectant
or aerosol 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 such
product will offer any absolute or comparative health, safety, or
environmental benefit;
unless, at the time of making such representation, respondents possess
and rely upon competent and reliable evidence that substantiates the
representation, which when appropriate must be competent and reliable
scientific evidence.
III
A. It is further ordered that respondents, RBR Productions, Inc., a
corporation, its successors and assigns, and its officers, and Richard
Rosenberg, individually and as an officer and director of said
corporation, and respondents' agents, representatives, and employees,
directly or through any partnership, corporation, subsidiary, division,
or other device, in connection with the manufacturing, labeling,
advertising, promotion, offering for sale, sale, or distribution of any
product or package, 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,
the extent to which:
(1) any such product or package is capable of being recycled; or,
(2) recycling collection programs for such product or package are
available.
B. Provided, however, respondents will not be in violation of Part
III.A(2) of this Order, in connection with the advertising, labeling,
offering for sale, sale or distribution of any aluminum aerosol can, if
it truthfully represents that such package is recyclable, provided
that:
(1) respondent discloses clearly, prominently, and in close
proximity to such representation:
(a) that such packaging is recyclable in the few communities with
recycling collection programs for aluminum aerosol cans; or
(b) the approximate number of U.S. communities with recycling
collection programs for such aluminum aerosol cans; or
(c) the approximate percentage of U.S. communities or the U.S.
population to which recycling collection programs for such aluminum
aerosol cans are available.
For the purposes of this Order, a disclosure elsewhere on the
product package shall be deemed to be ``in close proximity'' to such
representation if there is a clear and conspicuous cross-reference to
the disclosure. The use of an asterisk or other symbol shall not
constitute a clear and conspicuous
[[Page 42618]]
cross-reference. A cross-reference shall be deemed clear and
conspicuous if it is of sufficient prominence to be readily noticeable
and readable by the prospective purchaser when examining the part of
the package on which the representation appears.
IV
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 or assigns, shall maintain and upon
request make available to the Federal Trade Commission or its staff 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 and complaints
or inquiries from governmental organizations.
V
It is further ordered that respondent RBR Productions, Inc. shall
distribute a copy of this Order to each of its operating divisions and
to each of its officers, agents, representatives, or employees engaged
in the preparation and placement of advertisements, promotional
materials, product labels or other such sales materials covered by this
order.
VI
It is further ordered that respondent RBR Productions, Inc., its
successors and assigns, shall notify the Commission at least thirty
(30) days prior to any proposed change in the corporation such as a
dissolution, assignment, or sale resulting in the emergence of a
successor corporation, the creation or dissolution of subsidiaries, or
any other change in the corporation which may affect compliance
obligations under this Order.
VII
It is further ordered that respondent Richard Rosenberg shall, for
a period of five (5) 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. Each notice of affiliation with any new
business or employment shall include respondent's new business address
and telephone number, and a statement describing the nature of the
business or employment and his duties and responsibilities.
VIII
It is further ordered that this Order will terminate twenty years
from the date of its issuance, or twenty 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 in this Order that terminates in less than twenty
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 the 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.
IX
It is further ordered that respondents shall, within sixty (60)
days after 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 RBR
Productions, Inc., (``RBR'') a New Jersey corporation, and Richard
Rosenberg, an officer of RBR.
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.
The Commission's complaint in this matter concerns representations
for the following RBR products designed for use in beauty salons: Let's
Dance, a concentrated tuberculocidal disinfectant containing o-
phenylphenol, paratertiary amylphenol and phosphoric acid; and Let's
Touch, a concentrated tuberculocidal disinfectant product containing o-
phenylphenol. The complaint charges that respondents' advertising
represented Let's Dance concentrate is non-corrosive to skin and eyes,
non-toxic, and does not pose a risk of adverse health effects; that
Let's Touch concentrate is non-toxic and does not pose a risk of
adverse health effects; and that Let's Dance and Let's Touch, when
diluted for use, are classified as non-toxic under the Federal
Hazardous Substances Act regulations. The complaint alleges that these
claims are false and unsubstantiated. The complaint also alleges that
respondents' advertising represented without adequate substantiation
that Let's Dance and Let's Touch, when diluted for use, are non-toxic
and do not pose a risk of adverse health effects; that Let's Dance and
Let's Touch are three to five times less toxic than quaternary aluminum
compound disinfectants; that Let's Dance is safe for the environment
after ordinary use; and that Let's Dance will completely break down and
return to nature--i.e., decompose into elements found in nature--within
a reasonably short period of time after customary disposal.
Additional charges in the Commission's complaint concern Let's Go,
a nail glue drying spray containing volatile organic chemicals and
packaged in an aluminum aerosol can. The complaint alleges that
respondents' advertising represented that Let's Go's aluminum aerosol
can is recyclable. The complaint charges that this claim is false and
unsubstantiated because, while the Let's Go aluminum aerosol can is
capable of being recycled, only a few collection facilities accept
aluminum aerosol cans for recycling. Finally, the complaint alleges
that respondents' advertising represented, without adequate
substantiation, that Let's Go spray does not contain any ingredients
that harm or damage the environment.
The proposed consent order contains provisions designed to remedy
the violations charged and to prevent the respondents from engaging in
similar acts in the future. Part I of the proposed order would prohibit
respondents from misrepresenting that Let's Dance
[[Page 42619]]
concentrate is non-corrosive to skin or eyes, non-toxic, or does not
pose a risk of adverse health effects; that Let's Touch concentrate is
non-toxic or does not pose a risk of adverse health effects; or that
Let's Dance and Let's Touch use dilutions are classified as non-toxic
under the Federal Hazardous Substances Act regulations.
Part II.A of the proposed order would require competent and
reliable evidence, which when appropriate must be competent and
reliable scientific evidence, for any representation that Let's Dance
or Let's Touch use dilutions are non-toxic or do not pose a risk of
adverse health effects; that Let's Dance or Let's Touch concentrates or
use dilutions are less toxic than quaternary ammonium compound
disinfectants or any other disinfectant or product; that Let's Dance is
biodegradable; or, that Let's Dance is safe for the environment after
ordinary use. Part II.B of the proposed order would require competent
and reliable evidence, which when appropriate must be competent and
reliable scientific evidence, for any representation, through the use
of such terms as ``environmental formula,'' ``environmental formula,
freon free, ozone friendly,'' ``environmental formula, will not harm
the ozone, contains no freon, chlorofluorocarbons, methylene chloride,
or 1,1,1-trichloroethane,'' or any other term of expression, that Let's
Go spray or any other product containing any volatile organic compound
will not harm the environment. Part II.C of the proposed order would
require competent and reliable evidence, which when appropriate must be
competent and reliable scientific evidence, for a representation that
any disinfectant or aerosol product will offer any absolute or
comparative health, safety, or environmental benefit.
Part III.A of the proposed order would prohibit misrepresentations
of the extent to which any product or package is capable of being
recycled; or the extent to which recycling collection programs for such
product or package are available. Part III.B of the order gives
examples of representations that would not violate part III.A.
Parts IV through IX are standard provisions requiring retention of
certain records, distribution of the order to certain persons,
notification to the Commission of changes in corporate structure or of
employment of the individual respondent, termination of the order and
filing of compliance reports.
The purpose of this analysis is to facilitate public comment on the
proposed order, and it is not to constitute an official interpretation
of the agreement and proposed order or to modify in any way their
terms.
Benjamin I. Berman,
Acting Secretary.
[FR Doc. 96-20919 Filed 8-15-96; 8:45 am]
BILLING CODE 6750-01-M
