[Federal Register Volume 60, Number 238 (Tuesday, December 12, 1995)]
[Notices]
[Pages 63715-63717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30215]
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FEDERAL TRADE COMMISSION
[File No. 952-3391]
The Dannon Company, Inc.; Consent Agreement With Analysis To Aid
Public Comment
AGENCY: Federal Trade Commission.
ACTION: 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 the Tarrytown, NY-based frozen yogurt manufacturer from
misrepresenting the fat, calories, saturated fat, or cholesterol in any
of its frozen yogurt products. The consent agreement settles
allegations stemming from nutritional claims made in advertisements for
Dannon's line of Pure Indulgence frozen yogurt.
DATES: Comments must be received on or before February 12, 1996.
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: Justin Dingfelder, Bureau of Consumer
Protection, Federal Trade Commission, S-4631, 6th Street & Pennsylvania
Ave., NW., Washington, DC 20580, (202) 326-3017.
Peter Metrinko, Bureau of Consumer Protection, Federal Trade
Commission, S-4624, 6th Street & Pennsylvania Ave., N.W., Washington,
DC 20580, (202) 326-2104.
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)).
United States of America Before Federal Trade Commission
In the Matter of The Dannon Company, Inc., a corporation .
[File No. 952-3391.]
Agreement Containing Consent Order To Cease and Desist
The Federal Trade Commission having initiated an investigation of
certain acts and practices of The Dannon Company, Inc., hereinafter
sometimes referred to as proposed respondent, and it now appearing that
proposed respondent is 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 The Dannon Company, Inc., by
this duly authorized officer and attorneys, and counsel for the Federal
Trade Commission, that:
1. Proposed respondent The Dannon Company, 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 located at 120 White Plains Road, Tarrytown, NY 10591.
2. Proposed respondent admits all the jurisdictional facts set
forth in the draft complaint here attached.
3. Proposed respondent waives:
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. any claim under the Equal Access to Justice Act.
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
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.
5. This agreement is for settlement purposes only and does not
constitute an admission by proposed respondent 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. 234 of the Commission's
Rules, the Commission may, without further notice to proposed
respondent: (1) Issue its complaint corresponding in form and substance
with the draft complaint attached hereto 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. Delivery by
the Postal Service of the complaint and decision containing the agreed-
to Order to proposed respondent's address as stated in this agreement
shall constitute service. Proposed respondent waives any right it 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
[[Page 63716]]
may be used to vary or contradict the terms of the Order.
7. Proposed respondent has read the proposed complaint and Order
contemplated hereby. It understands that once the Order has been
issued, it will be required to file one or more compliance reports
showing that it has fully complied with the Order. Proposed respondent
further understands that it 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 respondent The Dannon Company, Inc., a
corporation, its successors and assigns, and its officers, agents,
representatives, and employees, directly or through any partnership,
corporation, subsidiary, division or other device, in connection with
the manufacture, advertising, packaging, labeling, promotion, offering
for sale, sale or distribution of any frozen food 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, through numerical or
descriptive terms or any other means, the existence or amount of fat,
saturated fat, cholesterol or calories in any such product. If any
representation covered by this Part either directly or by implication
conveys any nutrient content claim defined (for purposes of labeling)
by any regulation promulgated by the Food and Drug Administration,
compliance with this Part shall be governed by the qualifying amount
for such defined claim as set forth in that regulation.
II
Nothing in this Order shall prohibit respondent from making any
representation that is specifically permitted in labeling for any such
product in regulations promulgated by the Food and Drug Administration
pursuant to the Nutrition Labeling and Education Act of 1990.
III
It is further ordered that respondent, its successors and assigns,
shall pay to the Federal Trade Commission, by cashier's check or
certified check made payable to the U.S. Treasury and delivered to the
Associate Director for Enforcement, Bureau of Consumer Protection,
Federal Trade Commission, 6th and Pennsylvania Ave., NW, Washington, DC
20580, the sum of $150,000. Respondent shall make this payment on or
before the tenth day following the date of entry of this Order. In the
event of any default on any obligation to make payment under this
section, interest, computed pursuant to 28 U.S.C. 1961(a), shall accrue
from the date of default to the date of payment.
IV
It is further ordered that, for three (3) years after the last date
of dissemination of any representation covered by this Order,
respondents, or its successors and assigns, shall maintain and upon
request make available to the Federal Trade Commission for inspection
and copying:
1. All labeling, packaging, advertisements and promotional
materials setting forth any representation covered by this Order;
2. All materials that were relied upon to substantiate any
representation covered by this Order; and
3. All test reports, studies, surveys, demonstrations or other
evidence in its 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.
V
It is further ordered that respondent shall notify the Federal
Trade Commission at least thirty (30) days prior to any proposed change
in the respondent such as dissolution, assignment, or sale resulting in
the emergence of a successor corporation, the creation or dissolution
of subsidiaries or any other change in the corporation which may affect
compliance obligations arising out of this Order.
VI
It is further ordered that respondent shall, within thirty days
after service of this Order, distribute a copy of this Order to each of
its operating divisions, and to each of its officers, agents,
representatives, or employees engaged in the preparation or placement
of advertisements, promotional materials, product labels or other
materials covered by this Order.
VII
It is further ordered that respondent shall, within sixty (60) days
after service of this Order, file with the Commission a report, in
writing, setting forth in detail the manner and form in which it has
complied or intends to comply with this Order.
VIII
It is further ordered that this order will terminate twenty years
from the date of its issuance, or twenty years from the most recent
date that the United States or the Federal Trade Commission files a
complaint (with or without an accompanying consent decree) in federal
court alleging any violation of the order, whichever comes later;
provided, however, that the filing of such a complaint will not affect
the duration of:
A. Any paragraph in this order that terminates in less than twenty
years;
B. This order's application to any respondent that is not named as
a defendant in such complaint; and
C. This order if such complaint is filed after the order has
terminated pursuant to this paragraph.
Provided further, that if such complaint is dismissed or a federal
court rules that the respondent did not violate any provision of the
order, and the dismissal or ruling is either not appealed or upheld on
appeal, then the order will terminate according to this paragraph as
though the complaint was never filed, except that the order will not
terminate between the date such complaint is filed and the later of the
deadline for appealing such dismissal or ruling and the date such
dismissal or ruling is upheld on appeal.
Benjamin I. Berman,
Acting Secretary.
Analysis of Proposed Consent Order to Aid Public Comment
The Federal Trade Commission has accepted an agreement to a
proposed consent order from The Dannon Co., Inc., (``respondent'' or
``Dannon'').
The proposed consent order has been placed on the public record for
sixty (60) days for receipt of public 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 or make final the agreement's proposed
order.
This matter concerns claims made by Dannon in its advertising for
Pure Indulgence frozen yogurt.
The Commission's complaint in this matter charges Dannon with
engaging in deceptive and unfair acts or practices in connection with
the advertising of Pure Indulgence. The complaint alleges that
respondents manufactured, advertised, offered for sale, sold or
distributed a frozen yogurt sold under the name ``Pure Indulgence,''
which it represented
[[Page 63717]]
was low in fat, low in calories, and lower in fat than ice cream. At
the serving size for frozen yogurt commonly consumed, Pure Indulgence
was not low in fat or low in calories. Further, Pure Indulgence was not
lower in fat than many ice creams.
The Commission's complaint alleges that the above representations
for certain flavors of Pure Indulgence, at the time the advertising was
disseminated, were false and misleading.
The consent order contains provisions designed to remedy the
violations charged and to prevent Dannon from engaging in similar
deceptive and unfair acts in the future.
Part I of the Commission's order prohibits respondent, in
connection with the manufacture, advertising, packaging, labeling,
promotion, offering for sale, sale or distribution of any frozen food
product, from misrepresenting, in any manner, directly or by
implication, through numerical or descriptive terms or any other means,
the existence or amount of fat, saturated fat, cholesterol or calories
in any such product. However, if any representation covered by this
Part either directly or by implication conveys any nutrient content
claim defined (for purposes of labeling) by any regulation promulgated
by the Food and Drug Administration, compliance with this Part shall be
governed by the qualifying amount for such defined claim as set forth
in that regulation.
Part II of the order provides that nothing in the order shall
prohibit respondent from making any representation that is specifically
permitted in labeling for any such product in regulations promulgated
by the Food and Drug Administration pursuant to the Nutrition Labeling
and Education Act of 1990.
Under the terms of Part III of the order, respondents shall pay
$150,000.00 to the U.S. Treasury.
Part IV of the order requires Dannon to maintain copies of all
materials relating to advertisements covered by the order and all
documents relating to substantiation of advertising claims covered by
the order.
Part V requires Dannon to notify the Commission of any changes in
corporate structure that might affect compliance with the order.
Part VI requires Dannon to distribute copies of the order to
certain company officials and employees and certain other
representatives and agents of Dannon.
Part VII requires Dannon to file with the Commission a report
detailing compliance with the order.
Part VIII provides for termination of the order twenty years from
the date of issuance.
The purpose of this analysis is to facilitate 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 any of
their terms.
[FR Doc. 95-30215 Filed 12-11-95; 8:45 am]
BILLING CODE 6750-01-M