[Federal Register Volume 61, Number 235 (Thursday, December 5, 1996)]
[Notices]
[Pages 64521-64524]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30944]


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FEDERAL TRADE COMMISSION

[File No. 942-3218]


California SunCare, Inc.; Donald J. Christal; 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 or deceptive acts or practices and unfair methods of 
competition, this consent agreement, accepted subject to final 
Commission approval, would require, among other things, the Los 
Angeles, California-based company, and its president, to make certain 
disclosures in future ads and labeling, cautioning consumers that 
tanning, even without burning, can cause skin cancer and premature skin 
aging. The agreement settles allegations that California SunCare made 
false and unsubstantiated claims that moderate exposure to the 
ultraviolet radiation of the sun and in indoor tanning salons, such as 
those marketed by the company, is not harmful, and that such exposure 
actually provides many health benefits.

DATES: Comments must be received on or before February 3, 1997.

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: Joel Winston, Federal Trade 
Commission, S-4002, 6th and Pennsylvania Ave., NW, Washington, DC 
20580. (202) 326-3153. Toby Milgrom Levin, Federal Trade Commission, S-
4002, 6th and

[[Page 64522]]

Pennsylvania Ave., NW, Washington, DC 20580. (202) 326-3156.

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 above-captioned 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. The following Analysis to Aid 
Public Comment describes the terms of the consent agreement, and the 
allegations in the accompanying complaint. An electronic copy of the 
full text of the consent agreement package can be obtained from the 
Commission Actions section of the FTC Home Page (for November 19, 
1996), on the World Wide Web, at ``http://www.ftc.gov/os/actions/htm.'' 
A paper copy can be obtained from the FTC Public Reference Room, Room 
H-130, Sixth Street and Pennsylvania Avenue, N.W., Washington, D.C. 
20580, either in person or by calling (202) 326-3627. 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)).

Analysis of Proposed Consent Order To Aid Public Comment

    The Federal Trade Commission has accepted an agreement to a 
proposed consent order from California Suncare, Inc., the manufacturer 
and marketer of ``California Tan Heliotherapy'' tanning products, and 
its president, Donald J. Christal (hereinafter sometimes referred to as 
respondents).
    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.
    The Commission's complaint in this matter concerns representations 
made by respondents for their Heliotherapy line of skin care products, 
which are designed to be used in connection with tanning. The complaint 
alleges that certain advertisements and promotional materials 
disseminated by respondents have contained false or unsubstantiated 
claims about the safety and health benefits of exposure to ultraviolet 
radiation (``UVR'') from the sun or indoor tanning salons, and about 
the benefits and efficacy of the Heliotherapy products.

    More specifically, the complaint alleges that respondents falsely 
represented that:

--The negative effects of UVR, including skin cancer and premature skin 
aging, are caused only by overexposure and burning, and not by moderate 
exposure;
--Tanning as a result of UVR exposure is not harmful to the skin;
--Use of Heliotherapy products prevents or minimizes the negative 
effects of UVR; and
--Exposure to UVR reduces the risk of skin cancer.

    The complaint further challenges as unsubstantiated respondents' 
claims that exposure to UVR:

--Prevents or reduces the risk of colon and breast cancer;
--Lowers elevated blood pressure;
--Has benefits similar to those of exercise, including decreased blood 
pressure and lower heart rate;
--Significantly reduces serum cholesterol;
--Is an effective treatment for AIDS;
--Enhances the immune system; and
--Is necessary for the general population to reduce the risk of bone 
disorders such as osteoporosis and osteomalacia, which can be caused by 
reduced winter sunlight.

The complaint also alleges that respondents' claim that exposure to 
indoor UVR is an effective treatment for Seasonal Affective Disorder is 
unsubstantiated.
    In addition, the complaint challenges as unsubstantiated certain 
claims about the tanning efficacy of certain Heliotherapy products, 
including claims that Heliotherapy MAXIMIZERS help users achieve up to 
forty-two percent better tanning results and that Heliotherapy products 
with two percent VITATAN improve users' ability to tan by up to sixty-
seven percent.
    Finally, the complaint charges that respondents falsely represented 
that scientific studies demonstrate that exposure to UVR provides the 
health benefits set forth above and that the American Medical 
Association endorses exposure to UVR as an effective medical treatment.
    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 order prohibits respondents from making the false 
claims alleged in the complaint about the lack of harm from moderate 
UVR exposure and tanning, and the benefits of UVR in reducing the risk 
of skin cancer. Part I also prohibits misrepresentations about the 
ability of any tanning products or services to prevent or minimize the 
adverse effects of UVR exposure.
    Part II requires scientific substantiation for the claims about 
health benefits from UVR exposure challenged as unsubstantiated in the 
complaint, and for any claims about the health benefits of sunlight or 
indoor ultraviolet radiation. Part III of the order requires 
substantiation for claims that any tanning product or service prevents 
or minimizes the harms of UVR or will improve tanning or about the 
performance, safety, benefits, or efficacy of any such product or 
service.
    Part IV prohibits misrepresentations about studies or official 
endorsements for any product or service.
    The order also requires certain clear and prominent disclosures in 
future advertising and labeling for certain tanning products about the 
risks of exposure to sunlight or indoor ultraviolet radiation. Part V.A 
requires a disclosure in future ads and promotional materials for all 
tanning products that do not contain a sunscreen ingredient providing a 
minimum sun protection factor (SPF) of two. The disclosure reads as 
follows:

    CAUTION: Tanning in sunlight or under tanning lamps can cause 
skin cancer and premature skin aging--even if you don't burn.

    The disclosure is required in all advertising, with the exception 
of television advertising, billboards, and publications directed 
primarily to salon professionals. The exempted publications are limited 
to periodicals sold only by subscription with a readership of at least 
fifty percent salon professionals. The above disclosure must be made in 
all nonexempt advertising until the respondents have spent $1,500,000 
disseminating advertisements with the disclosure to consumers. If that 
amount is not spent within two years and six months after the order 
becomes effective, the exemptions no longer apply and the disclosure 
must appear in all advertising until the amount above is expended.
    Parts V.B and C require disclosures about the adverse effects of 
tanning in advertising and product labeling for tanning products that 
contain representations about the health benefits or safety of exposure 
to UVR. The advertising disclosure becomes effective

[[Page 64523]]

immediately in the case of the three types of advertising that are 
exempt from Part V.A as described above and becomes effective for all 
other types of advertising once the requirements of Part V.A have been 
satisfied. The labeling disclosure is required when the order becomes 
effective and applies to any tanning product not containing a sunscreen 
ingredient of at least SPF two. The label disclosure in addition to 
cautioning about the harms of tanning, states that the product does not 
contain a sunscreen and does not protect against burning.
    Part VI requires respondents to send a letter (appended to the 
order) to people who purchased Heliotherapy products for resale such as 
distributors and retailers. The letter describes the Commission's 
action and advises recipients to discontinue use of promotional 
materials that contain the challenged claims. The record keeping 
requirements for this part are laid out in Part VII. Part VII.C 
requires the respondents to warn and ultimately to stop doing business 
with recipients of the letter who continue to use materials that make 
the challenged claims.
    Part VII contains a provision permitting respondents to use old 
labeling for 100 days after the effective date of the order. However, 
it requires the removal of all the fold-out labels once the order 
becomes effective.
    The remaining parts of the order contain standard provisions with 
respect to record keeping, safe harbors for claims approved by the Food 
and Drug Administration, compliance, and sunsetting the order after 
twenty years.
    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 in any 
way their terms.
Donald S. Clark,
Secretary.
Statement of Commissioner Roscoe B. Starek, III, Concurring in Part and 
Dissenting in Part in California Suncare, Inc., File No. 942-3218
    I have voted to accept for public comment the consent agreement 
with California Suncare, Inc. (CSI) because, for the most part, it 
provides appropriate relief for the extremely serious 
misrepresentations alleged in the complaint about the health and safety 
effects of ultraviolet radiation (UVR) exposure and the benefits and 
efficacy of the company's tanning products. However, I do not support 
including the ``untriggered'' disclosure in Part V.A. of the proposed 
order.1 In my view this remedy constitutes corrective advertising, 
and I am not convinced that the evidence here meets the standard for 
imposing corrective advertising set forth in Warner-Lambert Co. v. FTC, 
562 F.2d 749, 762 (D.C. Cir. 1977), cert. denied, 435 U.S. 950 (1978).
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    \1\ Part V.A. requires CSI to include the following statement in 
all advertising and promotional materials disseminated directly to 
consumers or through purchasers for resale (except television 
advertising, billboards and advertising in magazines sold only by 
subscription for which half or more of the readership is comprised 
of tanning or beauty salon professionals): ``CAUTION: Tanning in 
sunlight or under tanning lamps can cause skin cancer and premature 
aging--even if you don't burn.'' This disclosure is applicable to 
all of respondent's products that contain a sunscreen ingredient 
providing a sun protection factor (SPF) of less than 2 and must be 
made until CSI spends $1.5 million on dissemination. If CSI does not 
expend this amount within 2\1/2\ years after the service of the 
order, the untriggered disclosure then becomes applicable to all 
forms of advertising until the required amount is spent.
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    Both the characteristics and scope of the untriggered disclosure 
lead me to conclude that it is actually corrective advertising in 
disguise. The disclosure requirement has certain characteristics 
usually associated with corrective advertising: it runs until a 
specific time period expires and a specific sum of money is exhausted, 
and it must be made regardless of the representations CSI makes about 
its products. See, e.g., American Home Products Corp. v. FTC, 695 F.2d 
681, 700 (3d Cir. 1982) (``[A] genuine corrective advertising 
requirement . . . demand[s] disclosure in future advertisements 
regardless of the content of those advertisements.''). Most 
significant, however, the scope of the untriggered disclosure far 
exceeds its rationale. The disclosure must appear in CSI's general 
advertising as well as in all promotional materials distributed 
directly to consumers for any tanning product that does not contain a 
sunscreen with a minimum SPF of 2. Yet the rationale advanced for this 
untriggered disclosure is that it is necessary to protect prospective 
purchasers from being misled by future misrepresentations about the 
effects of UVR exposure, particularly misrepresentations that might 
occur at ``the point of sale''--the tanning salons where consumers 
purchase CSI products. I see no reason for the untriggered disclosure 
to appear in general advertising if the disclosure's true intent is to 
prevent possible future deception of consumers at the point of sale.
    The disparity between the scope of the disclosure and its rationale 
suggests to me that its primary purpose is more consistent with 
corrective advertising than with an affirmative disclosure. The purpose 
of corrective advertising is to dispel false beliefs in the public mind 
created or reinforced by a challenged ad that are likely to endure (and 
thus to influence purchase decisions) even after the ad stops running. 
In contrast, the purpose of an affirmative disclosure remedy is to 
prevent deception from future claims like or related to those 
challenged.2 I recognize that the untriggered disclosure might 
have some impact on potential future deceptive claims about UVR 
exposure at the point of sale, but it is overbroad for this particular 
purpose, and the need for it seems minimal in light of the extensive 
other relief provided by the order.3 Thus, the main purpose of 
this untriggered disclosure seems to be to ameliorate lingering false 
beliefs that may have been created or reinforced by CSI's past claims 
that UVR exposure not only is not harmful but is positively beneficial.
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    \2\ It is difficult to draw bright lines between these possible 
forms of fencing-in relief, and I am not suggesting that the 
Commission forgo ordering affirmative disclosures in all 
circumstances in which the disclosures, while targeted primarily at 
the prevention of deception from future claims, may also 
incidentally affect a possible lingering public misimpression 
created by past advertising. This situation is not the case 
presented here.
    \3\ In addition to prohibiting misrepresentations about the 
effects of UVR exposure and tanning and unsubstantiated claims about 
the performance, safety, benefits, or efficacy of products or 
services used in connection with tanning, the proposed order 
requires two additional affirmative disclosures (Parts V.B. and 
V.C.) that are triggered by claims about the safety or health 
benefits of exposure to sunlight or indoor UVR. The language of 
these triggered disclosures is similar to that of the untriggered 
disclosure. The triggered disclosures apply to labeling and 
packaging--forms of advertising exempted from the untriggered 
disclosure--and, after the untriggered disclosure requirement runs 
out, to all other advertising and promotional material. The proposed 
order (Part VI) also requires CSI to send a letter to distributors 
and retailers of the company's tanning products that describes the 
Commission's enforcement action and advises them to stop using ads 
and promotional materials that contain any of the representations 
prohibited by the order or face losing CSI's business.
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    Although both corrective advertising and affirmative disclosures 
are forms of fencing-in relief that are well within the Commission's 
remedial authority, the standard for imposing corrective advertising is 
significantly more stringent than that for an affirmative disclosure. 
In imposing corrective advertising, the Commission normally relies on 
extrinsic evidence of the existence of lingering false beliefs created 
by past advertising. In certain cases, however, it may be possible to 
presume the existence of such false beliefs based on the nature and 
extent of the advertising campaign. Warner-

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Lambert, 562 F.2d at 762-63.4 An affirmative disclosure remedy, on 
the other hand, requires only that the disclosure be ``reasonably 
related'' to the alleged violations. In my view, it is important to 
distinguish between corrective advertising and affirmative disclosures 
because the Commission should not evade the more demanding standard for 
corrective advertising where it is clearly applicable.
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    \4\ See, e.g., Eggland's Best, Inc., Docket No. C-3520 (Aug. 15, 
1994) (Statement of Roscoe B. Starek, III).
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    There appears to be little basis for Part V.A. of the proposed 
order when it is viewed as corrective advertising. There is no direct 
evidence that CSI's ads and sales materials created or contributed to a 
lingering false impression that UVR exposure through sunlight and 
tanning has the health and safety benefits represented by the company. 
Moreover, I am not persuaded that it would be appropriate to presume 
that the company's message--that UVR exposure is beneficial--would 
endure in light of pervasive messages to the contrary.
    By accepting this consent agreement, the Commission is coming 
perilously close to lowering its standard for imposing corrective 
advertising by erasing the already blurred dividing line between that 
form of fencing-in relief and affirmative disclosures. Such a change is 
one that I cannot endorse.

[FR Doc. 96-30944 Filed 12-4-96; 8:45 am]
BILLING CODE 6750-01-P