[Federal Register Volume 61, Number 45 (Wednesday, March 6, 1996)]
[Notices]
[Pages 8939-8941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5226]



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FEDERAL TRADE COMMISSION
[File No. 952-3014]


Mrs. Fields Cookies, 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 Salt Lake City, Utah-based corporation from 
misrepresenting the amount of fat, saturated fat, cholesterol, or 
calories in any bakery food products. The consent agreement settles 
allegations that Mrs. Fields touted a cookie line as ``low fat'' in 
advertising and promotional materials when the fat content of two 
cookies in the line exceeded the amount of fat that qualifies as ``low 
fat'' under Food and Drug Administration regulations.

DATES: Comments must be received on or before May 6, 1996.

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

FOR FURTHER INFORMATION CONTACT:
Phoebe D. Morse, Boston Regional Office, Federal Trade Commission, 101 
Merrimac Street, Suite 810, Boston, Massachusetts 02114-4719, (617) 
424-5960.

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: Mrs. Fields Cookies, Inc., a corporation. File 
No. 952 3014.

Agreement Containing Consent Order To Cease and Desist

    The Federal Trade Commission having initiated an investigation of 
certain acts and practices of Mrs. Fields Cookies, Inc., a corporation, 
hereinafter sometimes referred to as proposed respondent, and it now 
appearing that proposed respondent is willing to enter 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 Mrs. Fields Cookies, Inc., by 
its duly authorized officer and attorney, and counsel for the Federal 
Trade Commission that:
    1. Proposed respondent Mrs. Fields Cookies, Inc. 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 located at 462 West Bearcat Drive, Salt Lake City, UT 84115.
    2. Proposed respondent admits all the jurisdictional facts set 
forth in the attached draft complaint.
    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 attached 
draft complaint, 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 attached draft complaint, or that the facts 
as alleged in the attached draft complaint, other than 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 Section 2.34 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 attached draft 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 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 rights 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 Mrs. Fields Cookies, 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 

[[Page 8940]]
any food in or affecting commerce, as ``food'' and ``commerce'' are 
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 bakery food product, whether cooked or uncooked. 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 food 
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 three (3) 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 possession or control that contradict, qualify, or call 
into question such representation, or the basis relied upon for 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, to each manager of its company-owned 
and franchised stores, and to each of its officers, agents, 
representatives, and employees engaged in the preparation or placement 
of advertisements or promotional materials covered by this Order.
    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.

VII

    This Order will terminate twenty (20) years from the date of its 
issuance, or twenty (20) 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 of this Order that terminates in less than twenty 
(20) 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 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

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 Mrs. Fields Cookies, 
Inc. (``Mrs. Fields'').
    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 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 Mrs. Fields in its advertising 
for three new cookies it introduced in 1994. The Commission's complaint 
charges Mrs. Fields with engaging in unfair or deceptive practices in 
connection with the advertising these cookies. According to the 
complaint, Mrs. Fields falsely represented that all three of the new 
cookies are low fat.
    The consent order contains provisions designed to remedy the 
violations charged and to prevent Mrs. Fields from engaging in similar 
deceptive and unfair acts and practices in the future.
    Part I of the order prohibits Mrs. Fields from misrepresenting the 
existence or amount of fat, saturated fat, cholesterol or calories in 
any bakery food product, whether cooked or uncooked. Part I also 
requires that any representation covered by this Part that conveys a 
nutrient content claim defined for labeling by any regulation of the 
Food and Drug Administration (``FDA'') must comply with the qualifying 
amount set forth in that regulation.
    Part II of the order provides that representations that would be 
specifically permitted in food labeling, under regulations issued by 
the FDA pursuant to the Nutrition Labeling and Education Act of 1990, 
are not prohibited by the order.
    Part III of the order requires Mrs. Fields to maintain copies of 
all materials relied upon in making any representation covered by the 
order.
    Part IV of the order requires Mrs. Fields to notify the Commission 
of any changes in corporate structure that might affect compliance with 
the order.
    Part V of the order requires Mrs. Fields to distribute copies of 
the order to its operating divisions and to various officers, agent and 
representatives of Mrs. Fields.
    Part VI of the order requires Mrs. Fields to file with the 
Commission one or more reports detailing compliance with the order.
    Part VII of the order is a ``sunset'' provision, dictating that the 
order will terminate twenty (20) 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 

[[Page 8941]]
the agreement and proposed order, or to modify any of their terms.
Donald S. Clark,
Secretary.
[FR Doc. 96-5226 Filed 3-5-96; 8:45 am]
BILLING CODE 6750-01-M