[Federal Register Volume 65, Number 250 (Thursday, December 28, 2000)]
[Notices]
[Pages 82378-82380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-33197]


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FEDERAL TRADE COMMISSION

[File No. 001 0215; Docket No. C-3987]


Philip Morris Companies, Inc., and Nabisco Holdings Corp.; 
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 agreement--that would settle 
these allegations.

DATES: Comments must be received on or before January 8, 2001.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room H-159, 600 Pennsylvania Avenue, NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: Richard Parker or Joseph Brownman, 
FTC/H-374, 600 Pennsylvania Avenue, NW., Washington DC 20580. (202) 
326-2574 or (202) 326-2605.

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

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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 thirty (30) 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 7, 2000), on the World Wide Web, 
at ``http://www.ftc.gov/os/2000/12/index.htm.'' A paper copy can be 
obtained from the FTC Public Reference Room, Room H-130, 600 
Pennsylvania Avenue, NW., Washington, DC 20580, either in person or by 
calling (202) 326-3627.
    Public comment is invited. Comments should be directed to: FTC/
Office of the Secretary, Room 159, 600 Pennsylvania Avenue, NW., 
Washington, DC 20580. Two paper copies of each comment should be filed, 
and should be accompanied, if possible, by a 3\1/2\ inch diskette 
containing an electronic copy of the comment. 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 To Aid Public Comment on the Provisionally Accepted 
Consent Order

I. Introduction

    The Federal Trade Commission (``Commission'') has accepted for 
public comment from Philip Morris Companies, Inc. (``Philip Morris'') 
and Nabisco Holdings Corp. (``Nabisco) an Agreement Containing Consent 
Orders (``Proposed Consent Order). Philip Morris and Nabisco 
(``Proposed Respondents) have also reviewed a Draft Complaint that the 
Commission contemplates issuing. The Commission and the Proposed 
Respondents have also agreed to an Order to Maintain Assets that 
requires the Proposed Respondents to maintain the competitive viability 
of certain assets pending divestiture. The Proposed Consent Order will 
remedy the likely anticompetitive effects in five relevant product 
markets arising from the proposed acquisition by Philip Morris of 
Nabisco.

II. Parties and Transaction

    Proposed Respondent Philip Morris is a Virginia corporation with 
its headquarters and principal place of business at 120 Park Avenue, 
New York, New York 10017-5592. In 1999, Philip Morris had total 
worldwide sales of approximately $79 billion, and total United States 
sales of approximately $48 billion. Philip Morris, through its Kraft 
Foods Inc. subsidiary, is the nation's largest food and beverage 
company.
    Proposed Respondent Nabisco is a Delaware corporation with its 
headquarters and principal place of business located at 7 Campus Drive, 
Parsippany, New Jersey 07054-0311. In 1999, Nabisco had total worldwide 
sales of approximately $8.3 billion, and total United States sales of 
approximately $5.9 billion. Nabisco is the nation's seventh largest 
food and beverage company.
    On June 25, 2000, Philip Morris and Nabisco entered into an 
agreement for Philip Morris to acquire Nabisco. The value of the 
transaction is approximately $19.4 billion.

III. Proposed Complaint

    According to the Draft Complaint that the Commission intends to 
issue, Philip Morris, through its Kraft Foods subsidiary, and Nabisco 
compete in the United States to sell and distribute (a) dry-mix 
gelatin, (b) dry-mix pudding, (c) no-bake desserts, (d) baking powder, 
and (e) intense mints.
    The Commission is concerned that the proposed acquisition would 
eliminate substantial competition between Philip Morris and Nabisco, 
and increase concentration substantially, in each relevant market, and 
result in higher prices. The Commission stated it has reason to believe 
that the proposed acquisition would have anticompetitive effects and 
violate Section 7 of the Clayton Act and Section 5 of the Federal Trade 
Commission Act.

IV. Competitive Concerns

A. Dry-Mix Gelatin Market
    Total United States sales of all dry-mix gelatin dessert products 
are about $212 million. In this market, Philip Morris, through its 
Jell-O brand, is the largest competitor with about an 86% share, and 
Nabisco, through its Royal brand, has about a 6% share. After the 
acquisition, Philip Morris will control approximately 92% of all dry-
mix gelatin sales. The proposed acquisition will increase the 
Herfindahl-Hirschman Index (``HHI''), the customary measure of industry 
concentration, in the dry-mix gelatin market by more than 1000 points, 
and result in a market concentration of over 8400 points.
B. Dry-Mix Pudding Market
    Total United States sales of all dry-mix pudding dessert products 
are about $202 million. In this market, Philip Morris, through its 
Jell-O brand, is the largest competitor with about an 82% share, and 
Nabisco, through its Royal and My-T-Fine brands, has about a 9% share. 
After the acquisition, Philip Morris will control approximately 91% of 
all dry-mix pudding sales. The proposed acquisition will increase the 
HHI by more than 1400 points and result in a market concentration of 
over 8300 points.
C. No-Bake Desserts Market
    Total United States sales of all no-bake dessert products are about 
$56 million. In this market, Philip Morris, through its Jell-O brand, 
is the largest competitor with about a 90% share, and Nabisco, through 
its Royal brand, has about a 6% share. After the acquisition, Philip 
Morris will control approximately 96% of all no-bake dessert sales. The 
proposed acquisition will increase the HHI by more than 1000 points, 
and result in a market concentration of over 9200 points.
D. Baking Powder Market
    Total United States sales of all baking powder products are about 
$29 million. In this market, Philip Morris, through its Calumet brand, 
has about a 27% share, and Nabisco, with its Davis and Fleischmann's 
brands, has about a 17% share. After the acquisition, Philip Morris 
will control approximately 44% of all United States baking powder 
sales. The proposed acquisition will increase the HHI by more than 900 
points and result in market concentration of more than 4800 points.
E. Intense Mints Market
    Total United States sales of all intense mints products are about 
$250 million. In this market, Philip Morris, through its Altoids brand, 
has about a 60% share, and Nabisco, with its Ice Breakers and Cool 
Blast brands, has about a 15% share. After the acquisition, Philip 
Morris will control approximately 75% of all United States intense 
mints sales. The proposed acquisition would increase the HHI by 
approximately 1800 points and result in market concentration of more 
than 5800 points.

V. The Consent Order

    The Proposed Consent Order, if finally issued by the Commission, 
would settle all of the charges alleged in the Commission's Draft 
Complaint. Under the terms of the Proposed Consent Order, Philip Morris 
and Nabisco will be required to divest the

[[Page 82380]]

Nabisco dry-mix desserts and baking powder businesses to The Jel Sert 
Company and the intense mints business, together with related Ice 
Breakers gum and Breath Savers mint businesses, to Hershey Foods 
Corporation.
    Philip Morris and Nabisco will be required to complete the required 
divestitures within ten (10) business days from the date they 
consummate their proposed acquisition. In the event Philip Morris and 
Nabisco do not complete the required divestitures in the time allowed, 
procedures for the appointment of a trustee to sell the assets have 
been agreed to and will be triggered. The Proposed Consent Order 
empowers the trustee to sell such additional ancillary assets as may be 
necessary to assure the marketability, viability, and competitiveness 
of the businesses that are required to be divested.
    Accompanying the Proposed Consent Order is an Order to Maintain 
Assets. This order requires Philip Morris and Nabisco to preserve and 
maintain the competitive viability of all of the assets required to be 
divested in order to insure that the competitive value of these assets 
will be maintained after the merger but before the assets are actually 
divested.

VI. Opportunity for Public Comment

    This Proposed Consent Order has been placed on the public record 
for thirty (30) days for receipt of comments from interested persons. 
Comments received during this period will become part of the public 
record. After the thirty (30) days, the Commission will again review 
the Proposed Consent Order and the comments received, and will decide 
whether it should withdraw from the agreement or make final the Consent 
Order in the agreement.
    By accepting the Proposed Consent Order subject to final approval, 
the Commission anticipates that the competitive problems alleged in the 
Draft Complaint will be resolved. The purpose of this analysis is to 
invite and facilitate public comment concerning the Proposed Consent 
order. It is not intended to constitute an official interpretation of 
the Proposed Consent Order, nor is it intended to modify the terms of 
the orders in any way.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 00-33197 Filed 12-27-00; 8:45 am]
BILLING CODE 6750-01-M