[Federal Register Volume 61, Number 2 (Wednesday, January 3, 1996)]
[Notices]
[Pages 168-170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-00072]



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FEDERAL TRADE COMMISSION

[File No. 942-3344]


Mama Tish's Italian Specialities, Inc.; Consent Agreement with 
Analysis to Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Comment 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 Chicago-based flavored ice cup dessert manufacturer from 
misrepresenting the amount of calories or other nutrients in any of 
their frozen dessert products in the future. The consent agreement 
settles allegations stemming from nutritional claims made 

[[Page 169]]
in advertisements for Mama Tish's line of ice cups.

DATES: Comments must be received on or before March 4, 1996.

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

FOR FURTHER INFORMATION CONTACT:
C. Steven Baker, Chicago Regional Office, Federal Trade Commission, 55 
East Monroe Street, Suite 1437, Chicago, IL 60603, (312) 353-8156, 
Barbara Di Giulio, Chicago Regional Office, Federal Trade Commission, 
55 East Monroe Street, Suite 1437, Chicago, IL 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)).

Agreement Containing Consent Order to Cease and Desist

    The Federal Trade Commission having initiated an investigation of 
certain acts and practices of Mama Tish's Italian Specialties, Inc., a 
corporation, and it now appearing that Mama Tish's Italian Specialties, 
Inc., hereinafter sometimes referred to as 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 that by and between Mama Tish's Italian 
Specialities, Inc., by its duly authorized officer and its attorneys, 
and counsel for the Federal Trade Commission that:
    1. Proposed respondent Mama Tish's Italian Specialties, Inc. is an 
Illinois corporation, with its office and principal place of business 
located at 4800 Central Avenue, Chicago, Illinois 60638.
    2. Proposed respondent admits all the jurisdictional facts set 
forth in the draft of 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; 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 information in respect thereto publicly 
released. The Commission thereafter may either withdraw its acceptance 
of this agreement and so notify the proposed respondent, 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 draft of complaint here attached, or that 
the facts as alleged in the draft of complaint, other than 
jurisdictional facts, are true.
    6. The 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 
proposed respondents, (1) issue its complaint corresponding in form and 
substance with the draft of complaint here attached and its decision 
containing the following order to cease and desist in disposition of 
the proceeding, and (2) make the 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 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 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 Mama Tish's Italian Specialties, 
Inc., a corporation, its successors and assigns, and its officers, 
agents, representatives, and employees, directly or through any 
corporation, subsidiary, division or other device, in connection with 
the manufacturing, labeling, advertising, promotion, offering for sale, 
sale, or distribution of any frozen dessert 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 calories or any other 
nutrient or ingredient 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 
product by regulations promulgated by the Food and Drug Administration 
pursuant to the Nutrition Labeling and Education Act of 1990.
III
    It is further ordered that for five (5) years after the last date 
of dissemination of any representation covered by this Order, 
respondent, or its 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 test reports, studies, surveys, demonstrations, or other 
evidence in its 

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possession or control that contradict, qualify, or call into question 
such representation, including complaints from consumers.
IV
    It is further ordered that respondent shall notify the 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 respondent which may affect 
compliance obligations arising out of this Order.
V
    It is further ordered that respondent shall, within thirty (30) 
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, employees, and licensees engaged in the preparation or 
placement of advertisements or other materials covered by this Order.
VI
    It is further ordered that respondent, or its successors and 
assigns, shall, for three (3) years after the date of the last 
dissemination of the representation to which they pertain, maintain and 
upon request make available to the Federal Trade Commission for 
inspection and copying all advertisements containing any representation 
covered by this Order.
VII
    It is further ordered that respondent shall, within sixty (60) days 
after service of this Order, 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.
VIII
    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 Mama Tish's Italian Specialities, Inc. 
(Mama Tish's).
    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 or make final the agreement's proposed 
order.
    This matter concerns claims made by Mama Tish's in its advertising 
for its ice cups.
    The Commission's complaint in this matter charges Mama Tish's with 
engaging in unfair or deceptive practices in connection with its 
advertising of its ice cups. According to the complaint Mama Tish's 
falsely represented that its ice cups are low in calories.
    The consent order contains provisions designed to remedy the 
violations charged and to prevent Mama Tish's from engaging in similar 
deceptive and unfair acts and practices in the future.
    Part I of the order prohibits Mama Tish's from misrepresenting the 
existence or amount of calories or any other nutrient or ingredient in 
any frozen dessert product. This part also requires any representation 
covered by this part that conveys a nutrient content claim defined by 
any regulation promulgated by the FDA pursuant to the Nutrient Labeling 
and Education Act of 1990 to meet the qualifying amount for that claim 
as set forth in that definition.
    Part II of the order provides that representations that would be 
specifically permitted in food labeling, under regulations issued by 
FDA pursuant to the Nutrient Labeling and Education Act of 1990, are 
not prohibited by the order.
    Part III of the order requires Mama Tish's to maintain copies of 
all materials relied upon in making any representation covered by the 
order.
    Part IV of the order requires Mama Tish's to notify the Commission 
of any changes in corporate structure that might affect compliance with 
the order.
    Part V of the order requires Mama Tish's to distribute copies of 
the order to its operating divisions and to various officers, agents 
and representatives of Mama Tish's.
    Part VI of the order requires Mama Tish's to maintain copies of all 
advertisements containing representations covered by the order.
    Part VII of the order requires Mama Tish's to file with the 
Commission one or more reports detailing compliance with the order.
    Part VIII of the order is a ``sunset'' provision, dictating that 
the order will terminate twenty years from the date it is issued or 
twenty years after a complaint is filed in federal court, by either the 
United States or the FTC, alleging any violation of the order.
    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. 96-00072 Filed 1-2-96; 8:45 am]
BILLING CODE 6750-01-M