[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