[Federal Register Volume 60, Number 2 (Wednesday, January 4, 1995)]
[Notices]
[Pages 464-466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-91]
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FEDERAL TRADE COMMISSION
[File No. 932 3357]
Abovo, 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 Massachusetts company and its president
from making false or unsubstantiated performance claims about any
communication aid they offer in the future, and from making
representations concerning the efficacy of their communication devices
in enabling individuals with disabilities to communicate through
facilitated communication, unless the respondents have competent and
reliable scientific evidence to substantiate the representation.
DATES: Comments must be received on or before March 6, 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:
Jeffrey Klurfeld or Kerry O'Brien, San Francisco Regional Office,
Federal Trade Commission, 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 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
Practices (16 CFR 4.9(b)(6)(ii)).
In the Matter of: Abovo, Inc., a corporation, and Susan L.
Lakso, individually and as an officer of said corporation.
Agreement Containing Consent Order to Cease and Desist
The Federal Trade Commission having initiated an investigation of
certain acts and practices of Abovo, Inc., a corporation, and Susan L.
Lakso, individually and as an officer of said corporation (``proposed
respondents''), and it not 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 Abovo, Inc., by its duly
authorized officer, and Susan L. Lakso, individually and as an officer
of said corporation, and their attorney, and counsel for the Federal
Trade Commission that:
1. Proposed respondent Abovo, Inc. is a corporation organized,
existing and doing business under and by virtue of the laws of the
State of Massachusetts, with its office and principal place of business
located at Cabotville Industrial Park, 165 Front Street, 4th Floor, B
Building, in the City of Chicopee, State of Massachusetts.
Proposed respondent Susan Lakso is an officer of said corporation.
She formulates, directs and controls the policies, acts and practices
of said corporation and her address 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; 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
complaint contemplated thereby, will be placed on the public record for
a period of sixty (60) days and [[Page 465]] 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 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, (a) 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 (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 proposed complaint and order
contemplated hereby. 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
Definitions
For the purposes of this Order, the following definitions shall
apply:
A. The term ``Communication Aid'' means any alphabet display chart,
computer, typewriter or other device, which is created or marketed for
use by persons with communication impairments, including the ``Abovo
Personal Communicating Device.''
B. The term ``Facilitated Communication'' means any method or
technique or process that entails an individual providing physical
support to a person with a communication aid.
I
It is ordered that respondents, Abovo, Inc., a corporation, its
successors and assigns, and its officers, and Susan L. Lakso,
individually and as an officer and director 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 communication aid, 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 such product enable autistic and/or
mentally retarded individuals to communicate through facilitated
communication.
II
It is further ordered that respondents, Abovo, Inc., a corporation,
its successors and assigns, and its officers, and Susan L. Lakso,
individually and as an officer and director 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 communication aid, 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 enables individuals with
disabilities to communicate through facilitated communication, unless
such representation is true and, at the time of making such
representation, respondents possess and rely upon competent and
reliable scientific evidence that substantiates the 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 respondents, Above, Inc., a corporation,
its successors and assigns, and its officers, and Susan L. Lakso,
individually and as an officer and director 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 communication aid, 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 performance or attributes of any such
product, unless, at the time of making such representation, respondents
possess and rely upon competent and reliable scientific evidence, that
substantiates such representation.
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 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.
V
It is further ordered that respondents shall notify the Commission
at least thirty (30) days prior to the effective date of any proposed
change in the corporate respondent that may affect compliance
obligations under this Order such as dissolution, assignment, or sale
resulting in the emergence of a successor corporation(s), the creation
or dissolution of subsidiaries, or any other change in the
corporation(s). [[Page 466]]
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
sixty (60) days from the date of service of this Order upon it,
distribute a copy of this Order to each of its officers, agents,
representatives, licensees, 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 has any responsibilities with respect to
the subject matter of this Order; and for a period of three (3) 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, licensees, 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 Abovo,
Inc., a Massachusetts corporation, and Susan L. Lakso, 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 the advertising of the ``Abovo Personal
Communicating Device'' (``Above PCD''), a communication aid for
individuals with disabilities. The Commission's complaint charges that
respondents' advertising contained false and unsubstantiated
representations concerning the efficacy of this communication aid in
enabling individuals with communication disabilities to communicate
through facilitated communication. Facilitated communication is a
technique that, among other things, entails an individual providing
physical support to a person with a communication impairment, while
that person types or points to a communication aid, such as the Abovo
PCD.
Specifically, the complaint alleges that respondents falsely
represented that the Abovo PCD enables autistic and mentally retarded
individuals to communicate through facilitated communication. The
complaint also alleges that the respondents lacked substantiation for
its claim that the Abovo PCD enables individuals who are disabled as a
result of apraxia, motor speech disorders, RETT Syndrome, stroke,
tracheotomy, laryngeal cancer, traumatic brain injury, Alzheimer's
disease, Parkinson's disease, multiple sclerosis, muscular dystrophy,
and/or cerebral palsy to communicate through facilitated communication.
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 prohibits respondents from
misrepresenting that any communication aid enables autistic or mentally
retarded individuals to communicate through facilitated communication.
As fencing-in relief, Part II of the proposed order provides that,
if respondents represent that a communication aid enables individuals
with disabilities to communicate through facilitated communication, the
representation must be true and respondents must possess competent and
reliable scientific evidence that substantiates the representation. In
addition, Part III of the proposed order prohibits respondents from
representing the performance or attributes of a communication aid
unless they possess and rely upon competent and reliable evidence,
which when appropriate must be competent and reliable scientific
evidence, to substantiate the representation.
The proposed order also requires respondents to maintain materials
relied upon to substantiate claims covered by the order; to provide a
copy of the consent agreement to their employees involved in the
preparation and placement of respondents' advertisements, or in
communication with respondents' customers or prospective customers; to
notify the Commission of any change in the 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.
Benjamin I. Berman,
Acting Secretary.
[FR Doc. 95-91 Filed 1-3-95; 8:45 am]
BILLING CODE 6750-01-M