[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