[Federal Register Volume 63, Number 241 (Wednesday, December 16, 1998)]
[Notices]
[Pages 69292-69293]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33283]


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FEDERAL TRADE COMMISSION

[File No. 9623270]


Max F. James; Analysis to Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed Consent Agreement.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices or unfair methods of competition. The attached Analysis to 
Aid Public comment describes both the allegations in the draft 
complaint that accompanies the consent agreement and the terms of the 
consent order--embodied in the consent agrement--that would settle 
these allegations.

DATES: Comments must be received on or before February 16, 1999.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 600 PA Ave., N.W., Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT:
Matthew Gold or Sylvia Kundig, San Francisco Regional Office, Federal 
Trade Commission, 901 Market Street, Suite 570, San Francisco, 
California 94103, (415) 356-5270.

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 complaint. An electronic copy of the full text of 
the consent agreement package can be obtained from the FTC Home Page 
(for December 8, 1998), on the World Wide Web, at ``http://www.ftc.gov/
os/actions97.htm.'' A paper copy can be obtained from the FTC Public 
Reference Room, Room H-130, 600 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, subject to 
final approval, to a proposed consent order from Max F. James 
(hereinafter ``James'' or ``respondent''). James is a distributor of 
nutritional supplements for New Vision International, Inc., a multi-
level marketing company. In a separate action, the Commission has also 
accepted a similar agreement involving New Vision International, Inc., 
an affiliated company, and two individuals.
    The proposed consent order has been placed on the public record for 
sixty (60) days for the 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 any 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 has focused on James' participation in the creation and 
dissemination of advertisements for a regimen of nutritional 
supplements that he has called ``God's Recipe.'' The advertisements 
claimed that God's Recipe could mitigate or cure the effects of 
Attention Deficit Disorder or Attention Deficit Hyperactivity Disorder.
    The proposed complaint alleges that James could not substantiate 
the following claims: (1) That God's Recipe can cure, prevent, treat or 
mitigate Attention Deficit Disorder or its symptoms; (2) that God's 
Recipe can cure, prevent, treat or mitigate Attention Deficit 
Hyperactivity Disorder or its symptoms; (3) that God's Recipe is an 
effective alternative treatment to the prescription drug Ritalin for 
Attention Deficit Disorder and Attention Deficit Hyperactivity 
Disorder; and (4) that testimonials from consumers appearing in the 
advertisements for God's Recipe reflect the typical or ordinary 
experience of members of the public whose children have used the 
product.
    Part I of the proposed consent order prohibits James, when 
advertising God's Recipe or any other food, drug or dietary 
supplements, from making claims (1) through (3), above, unless the 
claim is substantiated at the time it is made. Part II of the proposed 
order addresses

[[Page 69293]]

claims made through endorsements or testimonials. Under Part II, 
respondent may make such representations if he possesses and relies 
upon competent and reliable evidence that substantiates the 
representations; or the respondent must disclose either what the 
generally expected results would be for users of the advertised 
products, or the limited applicability of the endorser's experience to 
what consumers may generally expect to achieve. The proposed order's 
treatment of testimonial claims is in accordance with the Commission's 
``Guides Concerning Use of Endorsements and Testimonials in 
Advertising,'' 16 CFR 255.2(a).
    Part III of the proposed order prohibits James from making 
unsubstantiated claims about the safety of any food, drug or dietary 
supplement, or about the ability of such product to treat, cure, 
alleviate the symptoms of, prevent, or reduce the risk of developing 
any disease or disorder. Part IV of the proposed order contains 
language permitting James to make drug claims that have been approved 
by the FDA pursuant to either a new drug application or a tentative 
final or final standard. Part V states that James would be permitted to 
make claims that the FDA has approved pursuant to the Nutrition 
Labeling and Education Act of 1990.
    Part VI of the proposed order requires James to retain, and make 
available to the Commission upon request, all advertisements and 
promotional materials containing any representation covered by the 
order, as well as any materials that he relied upon in disseminating 
the representation and any materials that contradict, qualify, or call 
into question the representation.
    Part VII of the proposed order requires James to distribute the 
order to all current and future employees, agents and representatives 
having responsibilities under the order. Part VII would permit James to 
distribute a summary, in the form of a letter attached to the order as 
Appendix A, in lieu of the actual order.
    The remainder of the proposed order contains standard requirements 
that James notify the Commission of changes in their employments 
status, and that he file one or more reports detailing his compliance 
with 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 in any 
way their terms.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 98-33283 Filed 12-15-98; 8:45 am]
BILLING CODE 6750-01-M