[Federal Register Volume 60, Number 108 (Tuesday, June 6, 1995)]
[Notices]
[Pages 29850-29853]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13793]



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FEDERAL TRADE COMMISSION

[File No. 932-3150]


Frank A. Latronica, Jr., 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 distributor and the manufacturer of 
the Duram Emergency Escape Mask to possess competent and reliable 
scientific evidence to substantiate claims that their mask will absorb, 
filter out, or otherwise protect the user from any 
[[Page 29851]] hazardous gas or fumes associated with fires, and for 
claims that the mask is appropriate for use in mines.

DATES: Comments must be received on or before August 7, 1995.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 6th St. and Pa. Ave., N.W., Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT:
Alan E. Krause, Chicago Regional Office, Federal Trade Commission, 55 
East Monroe Street, Suite 1437, Chicago, Illinois 60603. (312) 353-
8156.

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 Frank A. Latronica, Jr., individually and doing 
business as Life Safety Products, and Duram Rubber Products, a 
partnership, Agreement Containing Consent Order to Cease and Desist.
    The Federal Trade Commission having initiated an investigation 
of certain acts and practices of Frank A. Latronica, Jr., 
individually and doing business as Life Safety Products; and Duram 
Rubber Products, a partnership, (hereinafter referred to as 
``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 Frank A. Latronica, Jr., 
individually and doing business as Life Safety Products; and Duram 
Rubber Products, a partnership, and counsel for the Federal Trade 
Commission that:
    1. Proposed respondent Frank A. Latronica, Jr., is an individual 
doing business as Life Safety Products with his principal office or 
place of business at 412 North Pacific Coast Highway, Suite 357, 
Laguna Beach, California 92651.
    2. Proposed respondent Duram Rubber Products is a registered 
partnership of Kibbutz Ramat Hakovesh organized, existing and doing 
business under and by virtue of the laws of the country of Israel, 
with its principal office or place of business at Kibbutz Ramat 
Hakovesh 44930 Israel.
    3. Proposed respondents admit all the jurisdictional facts set 
forth in the draft of complaint.
    4. 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;
    (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.
    5. This agreement shall not become a part of the public record 
of the proceeding unless and until it is accepted by the Commssion. 
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 
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.
    6. 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 draft complaint, other than the 
jurisdictional facts, are true.
    7. 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 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 the 
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.
    8. 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

Definitions

    For purposes of this Order, the following definitions shall 
apply:
    (1) ``Duram Emergency Escape Mask'' shall mean the over-the-head 
escape hood manufactured by Duram Rubber Products an Israeli 
Company.
    (2) ``Substantially similar product'' shall mean any mask, hood 
or other product that is designed or advertised as offering the user 
protection from the hazards associated with fires.
    (3) ``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.

I

    It is ordered that respondents Frank A. Latronica, Jr., 
individually and doing business as Life Safety Products; and Duram 
Rubber Products, a partnership, its successors and assigns, and its 
officers; and respondents' agents, representatives, and employees, 
directly or through any corporation, subsidiary, division, or other 
device, in connection with the labeling, advertising, promotion, 
offering for sale, sale, or distribution of the Duram Emergency 
Escape Mask, or any substantially similar 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. Such product is capable of absorbing, removing, filtering 
out, or otherwise protecting the user from any hazardous gas or 
fumes associated with fire, 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; or
    B. Such product can protect the user from any hazards associated 
with fire, 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; or
    C. Such product is appropriate for use in mines, unless such 
representation is true and, at the time of making such 
representation, respondents possess and rely upon competent and 
reliable evidence that substantiates the representation.
II

    It is further ordered that respondents Frank A. Latronica, Jr., 
individually and doing business as Life Safety Products; and Duram 
Rubber Products, a partnership, its successors and assigns, and its 
officers; and respondents' agents, representatives, and employees, 
directly or through any corporation, subsidiary, division, or other 
device, shall include, as specified below, the following disclosure 
in any advertisement or promotional material for the Duram Emergency 
Escape Mask, or any substantially [[Page 29852]] similar product, 
that is advertised, offered for sale, or sold by respondents that is 
incapable of absorbing, removing, filtering or otherwise providing 
significant protection from carbon monoxide, if that advertising or 
promotional material expressly or impliedly represents that the 
device protects the user from any hazard associated with fire:
    Notice: This device does not filter carbon monoxide--a lethal 
gas associated with fire.
    In any print advertisement or promotional material, the above 
disclosure shall be printed in a typeface and color that are clear 
and prominent in at least ten-point bold type print, in close 
conjunction with the representation. In multipage documents, the 
disclosure shall appear on the cover or first page.
    In any advertisement disseminated on television broadcast, 
cablecast, home video or theatrical release, the above disclosure 
shall be displayed in a legible superscript with a simultaneous 
voice-over recitation of the disclosure in a manner designed to 
ensure clarity and prominence.
    In any radio advertisement, the above disclosure shall be spoken 
in a manner designed to ensure clarity and prominence.
    Nothing contrary to, inconsistent with, or in mitigation of the 
above disclosure shall be used in any advertisement in any medium.

III

    It is further ordered that respondents Frank A. Latronica, Jr., 
individually and doing business as Life Safety Products; and Duram 
Rubber Products, a partnership, its successors and assigns, and its 
officers; and respondents' agents, representatives, and employees, 
directly or through any corporation, subsidiary, division, or other 
device, shall include, as specified below, the following disclosure 
on all package labels and package inserts for the Duram Emergency 
Escape Mask, or any substantially similar product, advertised, 
offered for sale, or sold by respondents that is incapable of 
absorbing, removing, filtering or otherwise providing significant 
protection from carbon monoxide:
    Warning: This device does not filter carbon monoxide--a lethal 
gas associated with fire.
    The above-required language shall be printed in at least ten-
point bold type print in a typeface and color that are clear and 
prominent. Nothing contrary to, inconsistent with, or in mitigation 
of the above disclosure shall be used on any such package label or 
product insert.

IV

    It is further ordered that respondents Frank A. Latronica, Jr., 
individually and doing business as Life Safety Products; and Duram 
Rubber Products, a partnership, its successors and assigns, and its 
officers; and respondents' agents, representatives, and employees, 
directly or through any corporation, subsidiary, division, or other 
device, in connection with the labeling, advertising, promotion, 
offering for sale, sale, or distribution of any fire protection or 
safety related product, 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 any such product protects or assists in protecting the user 
from respiratory hazards associated with fire, explosions, air 
pollution, chemical exposure or other environments where normal 
breathing is impaired, 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 the representation.

V

    It is further ordered that respondents Frank A. Latronica, Jr., 
individually and doing business as Life Safety Products; and Duram 
Rubber Products, a partnership, its successors and assigns, and its 
officers; and respondents' agents, representatives, and employees, 
directly or through any corporation, subsidiary, division, or other 
device, in connection with the labeling, advertising, promotion, 
offering for sale, sale, or distribution of any fire protection or 
safety related product, 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 
or interpretations of any test or study.
VI

    It is further ordered that respondents shall:
    A. Within thirty (30) days from the date of service of this 
Order, deliver by first class mail, a dated notification letter, on 
Life Safety Products letterhead stationery, in the form set forth in 
Appendix A to this Order, to each person, partnership or corporation 
who purchased a Duram Emergency Escape Mask from Life Safety 
Products. The notification letter shall be delivered by itself in a 
format that does not include any additional communication from 
respondent.
    B. Within sixty (60) days from the date of service of this 
Order, deliver by first class mail, a dated notification letter, on 
Life Safety Products letterhead stationery, in the form set forth in 
Appendix A to this Order, to each person, partnership, or 
corporation who purchased a Duram Emergency Escape Mask from any of 
the catalog retailers to whom Life Safety Products sold the Duram 
Emergency Escape Mask for resale. The notification letter shall be 
delivered by itself in a format that does not include any additional 
communication from respondent.

VII

    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 
representations; and
    B. All tests, reports, studies, surveys, demonstrations, or 
other evidence in its possession or control that contradict, 
qualify, or call into question such representation, or the basis 
relied upon for such representation, including complaints from 
consumers.

VIII

    It is further ordered that respondents shall:
    A. Within thirty (30) days from the effective date of this Order 
deliver a copy of this Order to each of their officers, agents, 
representatives, and employees who are engaged in the preparation or 
placement of advertisements, promotional materials, product labels 
or other such sales materials covered by this Order.
    B. For a period of ten (10) years from the effective date of 
this Order deliver a copy of this Order to each of their future 
officers, agents, representatives, and employees who are engaged in 
the preparation or placement of advertisements, promotional 
materials, product labels or other such sales materials covered by 
this Order, within three (3) days after the person assumes such 
position.
IX

    It is further ordered that the respondent Duram Rubber Products 
shall notify the Federal Trade Commission at least thirty (30) days 
prior to any proposed change in its partnership structure, including 
but not limited to dissolution, assignment or sale resulting in the 
emergence of a successor partnership or corporation, the creation or 
dissolution of subsidiaries or affiliates, the planned filing of a 
bankruptcy petition or any other partnership change, that may affect 
compliance obligations arising under this Order.

X

    It is further ordered that respondent Frank A. Latronica, Jr., 
doing business as Life Safety Products, shall, for a period of ten 
(10) years from the date this Order becomes final, notify the 
commission within thirty (30) days of the discontinuance of his 
present business or employment and of each affiliation with a new 
business or employment. Each notice of affiliation with any new 
business or employment shall include his new business address and 
telephone number, current home address, and a statement describing 
the nature of the business or employment and the duties and 
responsibilities. The expiration of the notice provision of this 
Part X. shall not affect any other obligation arising under this 
Order.

XI

    It is further ordered that respondent shall, within sixty (60) 
days after service of this Order upon it, 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 it has 
complied with this Order.

Appendix A

    Dear Purchaser of a Duram Emergency Escape Mask: Please note 
this important safety information:

The Duram Emergency Escape Mask you purchased does not filter carbon 
monoxide--a lethal gas associated with fire. This mask will not 
protect you from the effects of carbon monoxide gas.

    This means that if you are wearing the Duram Emergency Escape 
Mask during a fire, exit immediately. You should know that carbon 
monoxide is colorless and odorless.
    Our company, Life Safety Products, is sending all Duram 
Emergency Escape Mask (``Duram Mask'') purchasers this alert as a 
[[Page 29853]] result of a consent order with the Federal Trade 
Commission. According to the Federal Trade Commission, 
advertisements for the Duram Mask claimed that the mask would 
protect you from all significant fire hazards for up to 20 minutes. 
These hazards included toxic smoke, poisonous fumes, and lethal 
gases.
    The advertisements for the Duram Mask did not make it clear that 
the mask does not filter carbon monoxide--a lethal gas associated 
with fires.
    We have now agreed not to make any claims about the mask's 
ability to protect you from fire hazards, unless we have reliable 
scientific evidence to back up these statements.
    We also have learned that these masks are not appropriate for 
use in U.S. mines.
    While the Duram Mask will not protect you from carbon monoxide 
gas, it will protect you from other potentially lethal gases 
associated with fire. These gases include hydrogen chloride, 
hydrogen cyanide, nitrogen dioxide, and sulfur dioxide.

Life Safety Products
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 
Frank A. Latronica, Jr., doing business as Life Safety Products, and 
Duram Rubber Products.
    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 claims made by the respondents in their 
advertising and other promotional materials that the Duram Emergency 
Escape Mask will absorb or filter out all significant toxic smoke 
and poisonous fumes and lethal gases associated with fires; will 
protect the user from all significant hazards associated with toxic 
smoke, poisonous fumes and lethal gases in fires for up to twenty 
minutes; and is appropriate for use in mines. The Commission's 
complaint charges that respondents' claims are false and misleading 
because the Duram Emergency Escape Mask will not absorb or filter 
out all significant toxic smoke and poisonous fumes and lethal gases 
associated with fires because it does not absorb or filter out 
carbon monoxide, a lethal gas associated with fires; will not 
protect the user from all significant hazards associated with toxic 
smoke, poisonous fumes and lethal gases in fires for up to twenty 
minutes because it does not absorb or filter out carbon monoxide, a 
lethal gas associated with fires; and it is not appropriate for use 
in mines because it does not meet the standards developed by the 
National Institute for Occupational Safety and Health and the United 
States Bureau of Mines for Respiratory Protective Devices, as set 
forth in 30 CFR part 11.
    The Commission's complaint also charges that the respondents 
falsely represented that they possessed and relied upon a reasonable 
basis that substantiated the above claims. The Commission's 
complaint alleges that this representation is false and misleading 
because at the time they made these three representations 
respondents did not possess and rely upon a reasonable basis that 
substantiated these claims.
    The Commission's complaint also alleges that respondents' 
failure to disclose to consumers that the Duram Emergency Escape 
Mask does not absorb or filter out carbon monoxide, is a deceptive 
practice.
    Finally, the Commission's complaint charges that in their 
advertising and other promotional materials respondents represented, 
directly or by implication, that scientific tests prove that the 
Duram Emergency Escape Mask filters 94% of the smoke in an 
environment filled with smoke. The Commission's complaint alleges 
that this representation is false and misleading because scientific 
tests do not prove that the Duram Emergency Escape Mask filters 94% 
of the smoke in an environment filled with smoke.
    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 the respondents from 
representing, directly or by implication in its advertising or 
labeling for the Duram Emergency Escape Mask, or any substantially 
similar product, that such product is capable of absorbing, 
removing, filtering out, or otherwise protecting the user from any 
hazardous gas or fumes associated with fire and such product can 
protect the user from any hazards associated with fire unless such 
representation are true, and respondents possess and rely upon 
competent and reliable scientific evidence that substantiates them. 
Part I of the proposed order also prohibits the respondents from 
representing, directly or by implication in its advertising or 
labeling for the Duram Emergency Escape Mask, or any substantially 
similar product, that such product is appropriate for use in mines, 
unless such representations are true, and respondents possess and 
rely upon competent and reliable evidence that substantiates them.
    Part II of the proposed order requires respondents to include a 
disclosure in any advertisement or promotional material for the 
Duram Emergency Escape Mask or any substantially similar product 
alerts consumers that the mask is incapable of absorbing, removing, 
filtering or otherwise providing significant protection from carbon 
monoxide, if the advertisement or promotional material expressly or 
impliedly represents that the device protects the user from any 
hazard associated with fire. The proposed order also specifies the 
size and placement of such a disclosure for print advertisements and 
the nature and manner of such a disclosure for audio and visual 
advertisements.
    Part III of the proposed order requires respondents to include a 
disclosure on all package labels and package inserts for the Duram 
Emergency Escape Mask or any substantially similar product that 
alerts consumers that the mask does not filter carbon monoxide, a 
lethal gas associated with fire. The proposed order also specifies 
the size of such a disclosure and that it must be in a typeface and 
color that are clear and prominent.

    Part IV of the proposed order prohibits respondents from 
representing, directly or by implication, that any fire protection 
or safety related product protects or assists in protecting the user 
from respiratory hazards associated with fire, explosions, air 
pollution, chemical exposure or other environments where normal 
breathing is impaired, 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 the representation.

    Part V of the proposed order prohibits respondents from 
misrepresenting, in any manner, directly or by implication, for any 
fire protection or safety related product, the existence, contents, 
validity, results, conclusions or interpretations of any test or 
study.

    Part VI of the proposed order requires respondents to mail to 
each person who has purchased the Duram Emergency Escape Mask from 
Life Safety Products, or from any catalog retailer to whom Life 
Safety Products has sold the Duram Emergency Escape Mask for resale, 
a notification letter informing the consumer that the Duram 
Emergency Escape Mask they have purchased does not filter carbon 
monoxide.

    The remaining parts of the proposed consent order require the 
respondents to maintain materials relied upon in disseminating any 
representation covered by the order, to distribute copies of the 
order to certain company officials and employees, to notify the 
Commission of any changes in the corporate structure of Duram Rubber 
Products or the employment status of Mr. Frank A. Latronica, Jr., 
that might affect compliance with the order, and that each 
respondent file one or more compliance reports.

    The purpose of this analysis is to facilitate public comment on 
the proposed consent order. It is not intended to constitute an 
official interpretation of the agreement and proposed order or to 
modify their terms in any way.

Donald S. Clark,

Secretary.

[FR Doc. 95-13793 Filed 6-5-95; 8:45 am]

BILLING CODE 6750-01-M