[Federal Register Volume 59, Number 43 (Friday, March 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4966]
[[Page Unknown]]
[Federal Register: March 4, 1994]
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FEDERAL TRADE COMMISSION
[Dkt. 9252]
Sonic Technology Products, 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 California company and its officers
from representing that any ultrasonic pest control device can eliminate
rodent or flea infestations, and from misrepresenting the results of
any scientific studies regarding their ultrasonic pest control
products.
DATES: Comments must be received on or before May 3, 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:
Matthew Gold or David Newman, 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 Section 3.25(f) of
the Commission's Rules of Practice (16 CFR 3.25(f)), 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)).
Agreement Containing Consent Order To Cease and Desist
In the matter of SONIC TECHNOLOGY PRODUCTS, INC. a corporation,
and W. LOWELL ROBERTSON, individually and as an officer of said
corporation, and BRIAN PHILLIP JOBE, individually and as an officer
of said corporation. Docket No. 9252.
This agreement, by and between Sonic Technology Products, Inc., a
corporation, and W. Lowell Robertson and Brain Phillip Jobe,
individually and as officers of Sonic Technology Products, Inc., and
counsel for the Federal Trade Commission, is entered into in accordance
with the Commission's Rule governing consent order procedures.
Accordingly, It is hereby agreed:
1. Respondent Sonic Technology Products, Inc., is a corporation
organized, existing, and doing business under and by virtue of the laws
of the State of Nevada, with its principal place of business located at
120 Richardson Street, suite C, Grass Valley, California 95945.
Respondents W. Lowell Robertson and Brain Phillip Jobe are officers
of said corporation. Individually or in concert with others, they
formulate, direct, and control the policies, acts, and practices of
said corporation. Their office and place of business is the same as
that of said corporation.
2. Respondents admit all the jurisdictional facts set forth in the
attached draft complaint.
3. 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.
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 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
respondents, in which event it will take such action as it may consider
appropriate, or issue and serve its decision, in disposition of the
proceeding.
5. This agreement is for settlement purposes only and does not
constitute an admission by the respondents that the law has been
violated as alleged in the attached draft complaint, or that the facts
alleged in the 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 section 3.25(f) of the
Commission's Rules, the Commission may, without further notice to
respondents, (1) issue 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 decision
containing the agreed-to order to respondents' address as stated in
this agreement shall constitute service. 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. Respondents have read the 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. 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 Sonic Technology Products, Inc., (``Sonic'') a
corporation, and W. Lowell Robertson and Brian Phillip Jobe,
individually and as officers of said corporation, and their successors
and assigns, agents, representatives, and employees, directly or
through any corporation, subsidiary, division, or other device, in
connection with the advertising, marketing, offering for sale, sale, or
distribution of the ``PestChaser,'' the ``Pestrepeller,'' or any other
ultrasonic pest control device, 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:
A. That the device can or will eliminate infestations of rodents;
B. That the device can or will eliminate or reduce infestations of
fleas; or
C. That the device can or will repel fleas.
II
It is further ordered that respondents, their successors and
assigns, and the corporate respondent's officers, and respondents'
representatives, agents 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 ultrasonic pest control device, 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 existence, contents, validity, results,
conclusions, interpretations or purpose of any test, study or other
scientific data.
III
It is further ordered that respondents, their successors and
assigns, and the corporate respondent's officers, and respondents'
representatives, agents 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 ultrasonic pest control device, in or affecting commerce, as
``commerce'' is defined in the Federal Trade Commission Act, do
forthwith cease and desist from:
A. Representing, directly or by implication, that the
``PestChaser,'' the Pestrepeller,'' or any other ultrasonic pest
control device will increase or assist the effectiveness of a user's
efforts to eliminate or reduce infestations of rodents or other pests
when the device is used in conjunction with other pest control methods,
such as traps or poisons; or
B. Making, directly or by implication, any representation referring
or relating to the performance or efficacy of any such device;
unless at the time of making such a representation, respondents possess
and rely upon competent and reliable scientific evidence that
substantiates the representation. ``Competent and reliable scientific
evidence'' shall mean, for purposes of this Order, those tests,
analyses, research, studies or other evidence conducted and evaluated
in an objective manner by persons qualified to do so, using procedures
generally accepted by others in the profession or science to yield
accurate and reliable results;
Provided, That nothing in Section III of this Order shall prevent
respondents from truthfully representing, by use of the words
``Registered in Canada,'' that the Canadian Department of Agriculture
has registered the PestChaser, Pestrepeller or any other ultrasonic
pest control device, and permitted the sale of such device in Canada.
IV
It is further ordered that respondents shall, within thirty (30)
days after the date of service of this order, send to each catalog
company with whom respondents have done business since January 1, 1992,
a copy of this order and a notice that the catalog company shall
immediately cease using or relying upon any of respondent's advertising
or promotional materials containing representations prohibited by this
order.
V
It if further ordered that for three (3) years from the date that
the representation to which they pertain is last disseminated,
respondents shall maintain and upon request make available to the
Federal Trade Commission for inspection and copying;
A. All materials relied upon to substantiate any claim or
representation covered by this Order; and
B. All test reports, studies, or other materials in their
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.
VI
It is further ordered that for three (3) years from the date of
issuance of this Order, respondents shall maintain and upon request
make available to the Federal Trade Commission for inspection and
copying all documents demonstrating or relating to compliance with the
terms of this Order, including but not limited to:
A. All advertisements, promotional materials, documents, or other
materials relating to the offer of sale or sale of any ultrasonic pest
control device; and
B. All consumer complaints and requests for refunds.
VII
It is further ordered that, for three (3) years from the date of
issuance of this Order, the corporate respondent, its successors and
assigns, and the individual respondents, shall cause a copy of this
Order to be distributed to each purchaser of respondents' ultrasonic
pest control devices for resale, to each present and future managerial
employee of respondents, and to each present and future saleperson of
respondents' products, whether they are independent sales agents or
employees of respondents.
VIII
It is further ordered that, for five (5) years from the date of
issuance of this Order, 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.
IX
It is further ordered that, for five (5) years from the date of
issuance of this Order, each individual respondent shall notify the
Commission, by submitting a report, in writing, of any change in his
residence or business address, occupation, place of business, or place
of employment.
X
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 Sonic
Technology Products, Inc., a Nevada corporation, and W. Lowell
Robertson and Brian Phillip Jobe, individually and as officers 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 the labeling and advertising of the
PestChaser, a plug-in device that is designed to emit sound in
ultrasonic frequencies, i.e., frequencies inaudible to the human ear.
The Commission's complaint charges that respondents' advertising
contained false and unsubstantiated representations concerning the
PestChaser's alleged ability to affect rodents and fleas. Specifically,
the complaint alleges that respondents falsely claimed that the
PestChaser: (1) Eliminates rodent infestations; and (2) eliminates or
reduces flea infestations, or repels fleas.
The complaint further alleges that respondents falsely represented
that competent and reliable scientific tests have established that the
above efficacy claims are true. The complaint also alleges that
respondents lacked substantive for the claim that the PestChaser, when
used in conjunction with other pest control methods, such as traps and
poisons, will increase the effectiveness of the user's efforts to
eliminate or reduce infestations of rodents or other pests.
The proposed consent order contains provisions designed to remedy
the violations charged and to prevent respondents from engaging in
similar acts and practices in the future.
Part I of the proposed order prohibits respondents from claiming
that their ultrasonic pest control devices can or will: (1) Eliminate
infestations of rodents; (2) eliminate or reduce infestations of fleas;
or (3) repel fleas.
Part II of the proposed order prohibits respondents from
misrepresenting the existence, validity, results, conclusions,
interpretations or purpose of any test, study or other scientific data.
Part III of the proposed order requires respondents to possess
competent and reliable scientific evidence for: (1) any claim that any
ultrasonic pest control device will increase or assist the
effectiveness of a user's efforts to eliminate or reduce infestations
of rodents or other pests when the device is used in conjunction with
other pest control methods; or (2) any representation referring or
relating to the performance or efficacy of any ultrasonic pest control
device. Part III further provides that, notwithstanding this
requirement, respondents may truthfully represent, by use of the words
``Registered in Canada,'' that the Canadian Department of Agriculture
has registered their ultrasonic pest control device, and permitted the
sale of such device in Canada.
The proposed order also requires respondents to maintain materials
relied upon to substantiate claims covered by the order, to notify the
Commission of any changes in corporate structure that might affect
compliance with the order, and to notify the Commission of certain
changes in the business or employment of the named individual
respondents.
The proposed order also requires respondents to distribute copies
of the order to any catalog company with whom respondents have done
business since January 1, 1992, to present and future resellers of
their ultrasonic pest control devices, and to their managerial
employees and salespeople. Respondents must also 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. 94-4966 Filed 3-3-94; 8:45 am]
BILLING CODE 6750-01-M