[Federal Register Volume 60, Number 18 (Friday, January 27, 1995)]
[Notices]
[Pages 5397-5401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2058]



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FEDERAL TRADE COMMISSION

[File No. 921-0071]


Del Monte Foods Company, 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 
require, among other things, the California-based corporations to 
obtain, for ten years, Commission approval before acquiring any stock 
or assets of a United States canned fruit manufacturer, and before 
entering into a variety of marketing, packing, or other agreements with 
competitors.

dates: Comments must be received on or before March 28, 1995.

addresses: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 6th Street and Pennsylvania Avenue, NW., Washington, DC 
20580.

for further information contact: Ronald Rowe, FTC/S-2105, Washington, 
DC 20580. (202) 326-2610.

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).
    In the Matter of DEL MONTE FOODS COMPANY, a corporation; DEL 
MONTE CORPORATION, a corporation; and PACIFIC COAST PRODUCERS, a 
corporation, File No. 921-0071.

Agreement Containing Consent Order

    The Federal Trade Commission (``Commission'') having initiated an 
investigation of certain agreements entered into by Del Monte 
Corporation, a wholly-owned subsidiary of Del Monte Foods Company 
(hereinafter collectively referred to as ``Del Monte''), and Pacific 
Coast Producers (``PCP''), and it now appearing that Del Monte and PCP, 
hereinafter sometimes referred to as ``proposed respondents,'' are 
willing to enter into an agreement containing an order (``Agreement'') 
to terminate such agreements between Del Monte and PCP, to cease and 
desist from certain acts, and to provide for certain other relief,
    It is hereby agreed by and among proposed respondents, by their 
duly authorized officers and attorneys, and counsel for the Federal 
Trade Commission that:
    1. Proposed respondent Del Monte Corporation, a wholly-owned 
subsidiary of Del Monte Foods Company, is a corporation organized, 
existing, and doing business under and by virtue of the laws of the 
State of New York, with its office and principal place of business 
located at One Market Plaza, San Francisco, California 94119.
    2. Proposed respondent Del Monte Foods Company is a corporation 
organized, existing, and doing business under and by virtue of the laws 
of the State of Maryland, with its office and principal place of 
business at One Market Plaza, San Francisco, California 94119.
    3. Proposed respondent Pacific Coast Producers is a corporation 
organized, existing, and doing business under and by virtue of the laws 
of the State of California, with its office and principal place of 
business at 631 N. Cluff Avenue, Lodi, California 95240.
    4. Proposed respondents admit all the jurisdictional facts set 
forth in the draft of complaint.
    5. Proposed respondents waive:
    a. any further procedural steps;
    b. the requirement that the Commission's decision contain a 
[[Page 5398]] 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.
    6. 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.
    7. This Agreement is for settlement purposes only and does not 
constitute an admission by the proposed respondents that the law has 
been violated as alleged in the draft of the complaint, or that the 
facts as alleged in the draft complaint, other than jurisdictional 
facts, are true.
    8. 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 2.34 of the 
Commission's Rules, the Commission may, without further notice to the 
proposed respondents, (1) issue its complaint corresponding in form and 
substance with the draft of complaint and its decision containing the 
following order to terminate certain agreements entered into between 
Del Monte and PCP and to cease and desist in disposition of the 
proceeding, and (2) make information public with respect thereto. When 
so entered, the order shall have the same force and effect and may be 
altered, modified, or set aside in the same time provided by statute 
for other orders. The order shall become final upon service. Delivery 
by the United States Postal Service of the complaint and decision 
containing the agreed-to order to proposed respondents' addresses 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.
    9. 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 verified written 
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, as used in this order, the following 
definitions shall apply.
    A. ``Del Monte Corporation'' means Del Monte Corporation, its 
predecessors, subsidiaries, divisions, groups and affiliates controlled 
by Del Monte Corporation, and their respective directors, officers, 
employees, agents, and their respective successors and assigns.
    B. ``Del Monte`` means Del Monte Foods Company, its predecessors, 
subsidiaries (including Del Monte Corporation), divisions, groups and 
affiliates controlled by Del Monte Foods Company, and their respective 
directors, officers, employees, agents, and their respective successors 
and assigns.
    C. ``PCP'' means Pacific Coast Producers, its predecessors, 
subsidiaries, divisions, groups and affiliates controlled by Pacific 
Coast Producers, and their respective directors, officers, employees, 
members, agents, and their respective successors and assigns.
    D. ``Respondents'' means PCP and Del Monte (including Del Monte 
Corporation).
    E. ``Commission'' means the Federal Trade Commission.
    F. ``Canned Fruit'' means peaches, pears, fruit cocktail, and fruit 
mix, which consists primarily of diced peaches and diced pears, that 
are processed and canned.
    G. ``Option Agreement'' means the Option Agreement between Del 
Monte Corporation and Pacific Coast Producers entered into on May 4, 
1992, pursuant to which Del Monte acquired and PCP conveyed an 
exclusive and irrevocable option to purchase certain rights in, and 
title to, certain assets of PCP, including long term contracts with 
growers.
    H. ``Supply Agreement'' means the Supply Agreement between Del 
Monte Corporation and Pacific Coast Producers entered into on May 4, 
1992, pursuant to which Del Monte agreed to purchase virtually all of 
PCP's output of Canned Fruit, canned tomatoes, and canned apricots.
    I. ``Spot Market'' means ad hoc inter-canner transactions for 
Canned Fruit placed on an irregular basis where all Canned Fruit 
ordered under such an arrangement is delivered within nine weeks of 
placing the order.
    J. ``Tri Valley Growers'' means Tri Valley Growers, its 
predecessors, subsidiaries, divisions, groups and affiliates controlled 
by Tri Valley Growers, and their respective directors, officers, 
employees, members, agents, and their respective successors and 
assigns.
II
    It is further ordered that:
    A. Within three (3) days after the date this order becomes final, 
Respondents shall terminate the Option Agreement;
    B. Within three (3) days after the date this order becomes final, 
Respondents shall declare null and void the following paragraphs of the 
Supply Agreement: Paragraph 2, subparagraphs (b), (c), (e), and (f), 
Paragraph 23, Paragraph 24, and Paragraph 25 as it relates to the 
budget for canning after June 30, 1995; and
    C. On or before June 30, 1995, Respondents shall absolutely and in 
good faith terminate the Supply Agreement.
III
    It is further ordered that, for a period of ten (10) years from the 
date this order becomes final, Del Monte shall not, without the prior 
approval of the Commission, directly or indirectly, through 
subsidiaries, partnerships, or otherwise:
    A. Acquire any stock, share capital, equity, or other interest in 
any concern, corporate or non-corporate, engaged, at the time of such 
acquisition or within the two years preceding such acquisition, in the 
manufacture of any type of Canned Fruit in the United States; provided, 
however, that an acquisition shall be exempt from the requirements of 
this paragraph if it is solely for the purpose of investment and Del 
Monte will not hold more than one percent of the shares of any publicly 
traded class of security; or
    B. Acquire any assets, other than in the ordinary course of 
business, used for or used anytime within the two years preceding such 
acquisition for (and still suitable for use for) the manufacture of any 
type of Canned Fruit in the United States; provided, however, that an 
acquisition of assets will be exempt from the requirements of this 
paragraph [[Page 5399]] if the purchase price of the assets-to-be-
acquired does not exceed $1,500,000.00, and the purchase price of all 
assets used for, or previously used for (and still suitable for use 
for) the manufacture of any type of Canned Fruit in the United States 
that Del Monte has acquired from the same person (as that term is 
defined in the premerger notification rules, 16 C.F.R. 
Sec. 801.1(a)(1)) in the twelve-month period preceding the proposed 
acquisition, when aggregated with the purchase price of the to-be-
acquired assets, does not exceed $1,500,000.
IV
    It is further ordered that, for a period of ten (10) years from the 
date this order becomes final, unless Del Monte is required to seek 
prior approval from the Commission pursuant to Paragraph III, and 
unless Del Monte has obtained such prior approval, Del Monte shall not, 
without providing advance written notification to the Commission, 
directly or indirectly, through subsidiaries, partnerships, or 
otherwise, acquire any assets, other than in the ordinary course of 
business, used for or used anytime within the two years preceding such 
acquisition for (and still suitable for use for) the manufacture of any 
type of Canned Fruit in the United States.
    The notification required by this paragraph shall be provided to 
the Commission at least thirty (30) days prior to the acquisition. Such 
notification shall include a description of the assets to be acquired, 
the purchase price, the name of the person from whom the assets are to 
be acquired, including the name of the individual employed by such 
person that is most knowledgeable about the proposed acquisition, Del 
Monte's purpose in acquiring the assets from such person, and the use 
to which Del Monte intends to put such assets. Del Monte shall comply 
with reasonable requests from Commission staff for additional 
information within ten (10) days of service of such requests.
V
    It is further ordered that, for a period of ten (10) years from the 
date this order becomes final, Del Monte shall not, without the prior 
approval of the Commission, directly or indirectly, through 
subsidiaries, partnerships, or otherwise:
    A. Except with respect to agreements covered by Paragraphs V.B, VI, 
VII, and VIII, enter into any agreement or other arrangement to 
purchase or market any type of Canned Fruit with any corporate or non-
corporate entity, engaged, at the time of entering into such agreement 
or other arrangement or within two years preceding entering into such 
agreement or other arrangement, in the manufacture of any type of 
Canned Fruit in the United States; provided, however, that entering 
into such an agreement or other arrangement will be exempt from the 
requirements of this paragraph if the agreement or other arrangement is 
for the purchase of Canned Fruit on the Spot Market; or
    B. Enter into any agreement or other arrangement with Tri Valley 
Growers to have any type of Canned Fruit manufactured on Del Monte's 
behalf.
VI
    It is further ordered that:
    A. for a period of five (5) years from the date this order becomes 
final, Del Monte shall not, without the prior approval of the 
Commission, directly or indirectly, through subsidiaries, partnerships, 
or otherwise, except with respect to agreements covered by Paragraphs 
V, VII, and VIII, enter into any agreement or other arrangement to have 
any type of Canned Fruit manufactured on Del Monte's behalf (``co-pack 
agreement'') with any corporate or non-corporate entity, engaged, at 
the time of entering into such co-pack agreement or within the two 
years preceding entering into such co-pack agreement, in the 
manufacture of any type of Canned Fruit in the United States;
    B. For a period beginning on the fifth anniversary of the date this 
order becomes final until ten years from the date this order becomes 
final, Del Monte shall not, without providing advance written 
notification to the Commission, directly or indirectly, through 
subsidiaries, partnerships, or otherwise, except with respect to 
agreements covered by Paragraphs V, VII, and VIII, enter into any 
agreement or other arrangement to have any type of Canned Fruit 
manufactured on Del Monte's behalf (``co-pack agreement'') with any 
corporate or non-corporate entity, engaged, at the time of entering 
into such co-pack agreement or within the two years preceding entering 
into such co-pack agreement, in the manufacture of any type of Canned 
Fruit in the United States. Said notification shall be provided to the 
Commission by Del Monte thirty (30) days before the entity begins 
manufacturing the Canned Fruit pursuant to such co-pack agreement. Said 
notification shall include a copy of the proposed co-pack agreement and 
all schedules and attachments. Del Monte shall comply with reasonable 
requests from Commission staff for additional information concerning 
such co-pack agreements within ten (10) days of service of such 
requests.
VII
    It is further ordered that, for a period of ten (10) years from the 
date this order becomes final, Respondents shall not, without the prior 
approval of the Commission, directly or indirectly, through 
subsidiaries, partnerships, or otherwise, enter into an agreement 
requiring PCP to manufacture any type of Canned Fruit on behalf of Del 
Monte (``co-pack agreement''); provided, however, that such a co-pack 
agreement between Del Monte and PCP will be exempt from the 
requirements of this paragraph if the aggregate of all co-pack 
agreements entered into in any calendar year meet all of the following 
criteria: 1) the amount of retail sizes (net weight under two pounds) 
does not exceed ten percent of PCP's output of Canned Fruit, measured 
in basic cases (24 2\1/2\ can sizes), manufactured in the same year as 
the Canned Fruit manufactured pursuant to the co-pack agreements; 2) 
the amount of peaches grown by PCP used for the co-pack agreements does 
not exceed 8,000 tons in any year and none of PCP's peaches is used for 
retail sizes manufactured pursuant to the co-pack agreements, and 3) 
the total amount of the Canned Fruit manufactured pursuant to the co-
pack agreements a) in each of the years 1995 and 1996 constitutes forty 
(40) percent or less of PCP's output of Canned Fruit manufactured in 
each of those years, measured in basic cases; and b) in each year 
thereafter constitutes thirty (30) percent or less of PCP's output of 
Canned Fruit manufactured in that year, measured in basic cases.
VIII
    It is further ordered that, for a period of ten (10) years from the 
date this order becomes final, unless Respondents are required to seek 
prior approval from the Commission pursuant to Paragraph VI, and unless 
Respondents have obtained such prior approval, Respondents shall not, 
without providing advance written notification to the Commission, 
directly or indirectly, through subsidiaries, partnerships, or 
otherwise, enter into a co-pack agreement with each other. Said 
notification shall be provided to the Commission by PCP on or before 
March 1 of each year in which Del Monte and PCP plan to enter into a 
co-pack agreement. Said notification shall include a copy of the 
proposed co-pack agreement, all schedules and attachments, the amount 
of the planned co-pack stated in basic areas (24 2\1/2\ can sizes) and 
the amount, stated in basic cases, for PCP's planned production of 
Canned Fruit for the same year. [[Page 5400]] 
IX
    It is further ordered that:
    A. Within thirty (30) days after the date this order becomes final 
and every sixty (60) days thereafter until the Supply Agreement is 
terminated, Respondents shall submit to the Commission a verified 
written report setting forth in detail the steps taken to comply with 
Paragraph II of the order; and
    B. One year (1) from the date this order becomes final, annually 
for the next nine (9) years on the anniversary of the date this order 
becomes final, and at such other times as the Commission may require, 
Respondents shall file a verified written report with the Commission 
setting forth in detail the manner and form in which each has complied 
and is complying with the provisions of this order.
X
    It is further ordered that each of the Respondents shall notify the 
Commission at least thirty (30) days prior to any proposed change in 
such Respondent such as dissolution, assignment, or sale resulting in 
the emergence of a successor corporation, or the creation or 
dissolution of subsidiaries or any other change in such Respondent that 
may affect compliance obligations arising out of the order.
XI
    It is further ordered that, for the purpose of determining or 
securing compliance with this order, and subject to any legally 
recognized privilege, upon written request and on reasonable notice to 
Respondents, each of the Respondents shall permit any duly authorized 
representative of the Commission.
    A. Access, during office hours and in the presence of counsel, to 
inspect and copy all books, ledgers, accounts, correspondence, 
memoranda and other records and documents in the possession or under 
the control of such Respondent relating to any matters contained in 
this order; and
    B. Upon five days' notice to such Respondent and without restraint 
or interference from it, to interview officers, directors, or employees 
of such Respondent, who may have counsel present, regarding such 
matters.

Analysis To Aid Public Comment on the Provisionally Accepted Consent 
Order

    The Federal Trade Commission (``the Commission'') has accepted for 
public comment from Del Monte Foods Company, Del Monte Corporation 
(``Del Monte''), and Pacific Coast Producers (``PCP'') and agreement 
containing consent order. This agreement has been placed on the public 
record for sixty days for reception of comments from interested 
persons.
    Comments received during this period will become part of the public 
record. After sixty days, the Commission will again review the 
agreement and the comments received and will decide whether it should 
withdraw from the agreement or make final the agreement's order.
    The Commission's investigation of this matter concerns a supply 
agreement between Del Monte and PCP that commenced in July of 1992. The 
effect of the supply agreement was that Del Monte acquired the business 
of PCP, and PCP was no longer a competitor in the market for canned 
peaches, pears, fruit cocktail, and fruit mix (``canned fruit''). The 
supply agreement also contained an option agreement by which Del Monte 
had the right to purchase PCP outright. The agreement containing 
consent order would, if finally accepted by the Commission, settle 
charges alleged in the Commission's complaint that the supply agreement 
and option agreement substantially lessened competition in the sale of 
canned fruit in the United States and that Del Monte entered into such 
agreements with the effect of restraining, lessening, or eliminating 
competition, or acquiring or maintaining market power in the same 
market. The Commission's complaint further alleges that such agreements 
had and will have anticompetitive effects and that, in entering into 
such agreements, respondents violated Section 7 of the Clayton Act and 
Section 5 of the Federal Trade Commission Act.
    The order accepted for public comment contains provisions that 
would require that Del Monte and PCP terminate the supply agreement in 
June of 1995 and terminate the option agreement and certain provisions 
of the supply agreement within three days after the date the order 
becomes final. The provisions of the supply agreement that would 
require termination within three days relate to planning for the 1995 
canning season. The purpose of the delay in terminating the entire 
supply agreement is to assure the orderly return of PCP to the market 
as a viable operation engaged in the sale of canned fruit in the United 
States. The delay permits PCP time to plan for the manufacture of fruit 
for the 1995 canning season and obtain customers for that fruit, 
without the pressure of marketing last year's inventory.
    For a period of ten years from the date the order becomes final, 
the order would also prohibit Del Monte from acquiring, without prior 
Commission approval, stock in or assets of an entity engaged in the 
manufacture of any type of canned fruit in the United States. 
Acquisitions, for investment purposes only, of less than 1% of the 
outstanding stock of a publicly-traded company would be exempt from the 
prior approval provision.
    Acquisitions of certain assets valued at less than $1.5 million 
would also be exempt from the prior approval provision, but the order 
would require that Del Monte give 30 days' notice to the Commission 
before consummating the acquisition.
    For a period of ten years from the date the order becomes final, 
the order would also prohibit Del Monte, without obtaining prior 
Commission approval, from entering into an agreement to buy canned 
fruit from, or market canned fruit for, a person engaged in the 
manufacture of canned fruit in the United States. Del Monte would not, 
however, have to obtain prior Commission approval for purchases made on 
the spot market.
    For a period of ten years from the date the order becomes final, 
the order would also prohibit Del Monte, without obtaining prior 
Commission approval, from having canned fruit packed on Del Monte's 
behalf (``co-pack'') by Tri Valley Growers or PCP. Tri Valley Growers 
is a large manufacturer of canned fruit. Del Monte and PCP may enter 
into a co-pack agreement for canned fruit, without obtaining prior 
Commission approval, if the following conditions are met: (1) The 
amount of PCP's peaches used in the co-pack for Del Monte does not 
exceed 8,000 tons in any year; (2) the amount or retail sizes packed 
under the co-pack does not exceed 10% of PCP's output; (3) the total 
amount of the co-pack does not exceed 40% of PCP's output in each of 
the first two years after the order becomes final and 30% of PCP's 
output in each year thereafter. Prior to entering into the supply 
agreement that is the subject of this compliant, PCP co-packed canned 
fruit for Del Monte.
    For a period of five years from the date the order becomes final, 
the order would also prohibit Del Monte, without obtaining prior 
Commission approval, from having canned fruit packed on Del Monte's 
behalf (``co-pack'') by any entity engaged in the manufacture of canned 
fruit. In years six through ten, Del Monte would have to provide prior 
notice to the Commission of such a co-pack, but would not need to 
obtain prior approval.
    The purpose of this analysis is to invite public comment concerning 
the consent order and any other aspect of [[Page 5401]] this matter. 
This analysis is not intended to constitute an official interpretation 
of the agreement and order or to modify its terms in any way.
Donald S. Clark,
Secretary.

Concurring Statement of Commissioner Roscoe B. Starek, III

    In the Matter of Del Monte Foods Company/Pacific Coast 
Producers, File No. 921 0071.
    In voting to accept the agreement containing consent order in 
this matter, I have overcome my reluctance to support an order that 
at first blush appeared to contain certain inordinately regulatory 
provisions. As a general proposition, I prefer clear, simple, easily 
enforceable cease-and-desist language over orders that establish 
complex metes and bounds for permissible conduct.
    Some provisions of the present order--Paragraph VII is the 
extreme example--seem to prescribe the behavior of Del Monte and 
Pacific Coast Producers (``PCP'') with an unfortunate degree of 
detail. Despite the detailed nature of those provisions, however, 
the order is unlikely to place undue constraints on the parties' 
operations. In particular, the ``regulatory''-looking proviso to 
Paragraph VII clearly constitutes a substantial accommodation--i.e., 
an exception to what would otherwise be a moratorium on co-pack 
arrangements between Del Monte and PCP--designed to allow the 
parties to realize efficiencies. To the extent that the parties need 
even more latitude than that proviso affords, Paragraph VII allows 
them to seek the Commission's approval for a more extensive co-pack 
arrangement. Thus, if the parties wish to expand their co-pack 
agreement beyond what the proviso to Paragraph VII contemplates, the 
paragraph operates as it should: it puts on the parties the burden 
of establishing that a more extensive arrangement will yield net 
efficiencies.

[FR Doc. 95-2058 Filed 1-26-95; 8:45 am]
BILLING CODE 6750-01-M