[Federal Register Volume 70, Number 45 (Wednesday, March 9, 2005)]
[Notices]
[Pages 11674-11675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4593]



[[Page 11674]]

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FEDERAL TRADE COMMISSION

[File No. 032 3239]


Hi-Health Supermart Corporation, et al.; 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 March 16, 2005.

ADDRESSES: Comments should refer to ``Hi-Health Supermart Corporation, 
et al., File No. 032 3239,'' to facilitate the organization of 
comments. A comment filed in paper form should include this reference 
both in the text and on the envelope, and should be mailed or delivered 
to the following address: Federal Trade Commission/Office of the 
Secretary, Room H-159, 600 Pennsylvania Avenue, NW., Washington, DC 
20580. Comments containing confidential material must be filed in paper 
form, as explained in the SUPPLEMENTARY INFORMATION section. The FTC is 
requesting that any comment filed in paper form be sent by courier or 
overnight service, if possible, because U.S. postal mail in the 
Washington area and at the Commission is subject to delay due to 
heightened security precautions. Comments filed in electronic form 
(except comments containing any confidential material) should be sent 
to the following e-mail box: [email protected].

FOR FURTHER INFORMATION CONTACT: Heather Hippsley or Matthew Daynard, 
FTC, Bureau of Consumer Protection, 600 Pennsylvania Avenue, NW., 
Washington, DC 20580, (202) 326-3285 or 326-3291.

SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Sec.  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 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 February 15, 2005), on the World Wide Web, at http://www.ftc.gov/os/2005/02/index.htm. A paper copy can be obtained from the FTC Public 
Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW., Washington, 
DC 20580, either in person or by calling (202) 326-2222.
    Public comments are invited, and may be filed with the Commission 
in either paper or electronic form. Written comments must be submitted 
on or before March 16, 2005. Comments should refer to ``Hi-Health 
Supermart Corporation, et al., File No. 032 3239,'' to facilitate the 
organization of comments. A comment filed in paper form should include 
this reference both in the text and on the envelope, and should be 
mailed or delivered to the following address: Federal Trade Commission/
Office of the Secretary, Room H-159, 600 Pennsylvania Avenue, NW., 
Washington, DC 20580. If the comment contains any material for which 
confidential treatment is requested, it must be filed in paper (rather 
than electronic) form, and the first page of the document must be 
clearly labeled ``Confidential.'' \1\ The FTC is requesting that any 
comment filed in paper form be sent by courier or overnight service, if 
possible, because U.S. postal mail in the Washington area and at the 
Commission is subject to delay due to heightened security precautions. 
Comments filed in electronic form should be sent to the following e-
mail box: [email protected].
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    \1\ Commission Rule 4.2(d), 16 CFR 4.2(d). The comment must be 
accompanied by an explicit request for confidential treatment, 
including the factual and legal basis for the request, and must 
identify the specific portions of the comment to be withheld from 
the public record. The request will be granted or denied by the 
Commission's General Counsel, consistent with applicable law and the 
public interest. See Commission Rule 4.9(c), 16 CFR 4.9(c).
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    The FTC Act and other laws the Commission administers permit the 
collection of public comments to consider and use in this proceeding as 
appropriate. All timely and responsive public comments, whether filed 
in paper or electronic form, will be considered by the Commission, and 
will be available to the public on the FTC Web site, to the extent 
practicable, at http://www.ftc.gov. As a matter of discretion, the FTC 
makes every effort to remove home contact information for individuals 
from the public comments it receives before placing those comments on 
the FTC Web site. More information, including routine uses permitted by 
the Privacy Act, may be found in the FTC's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

Analysis of Proposed Consent Order To Aid Public Comment

    The Federal Trade Commission has accepted, subject to final 
approval, an agreement containing a consent order from Hi-Health 
Supermart Corporation and Simon D. Chalpin (collectively, ``Hi-
Health'').
    The proposed consent order has been placed on the public record for 
thirty (30) days for receipt of comments by interested persons. 
Comments received during this period will become part of the public 
record. After thirty (30) 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 involves alleged misleading representations about a 
dietary supplement, Premier Formula for Ocular Nutrition-Optim3 
(``Ocular Nutrition''), marketed by Hi-Health for the treatment of age-
related macular degeneration (``AMD''), cataracts, and floaters.
    The complaint alleges that Hi-Health failed to substantiate claims 
that its Ocular Nutrition: (1) Restores vision lost from AMD; and (2) 
eliminates floaters. In addition, the complaint alleges that Hi-Health 
falsely claimed that: (1) Several nutritional studies in responsible 
medical journals confirm that the ingredients available in Ocular 
Nutrition may help individuals with cataracts and/or floaters; and (2) 
a study financed by Hi-Health shows that 83% of ophthalmologists 
recommend or prescribe Ocular Nutrition to treat age-related macular 
degeneration and cataracts. The complaint alleges that there are no 
nutritional studies in responsible medical journals that confirm that 
the ingredients available in Ocular Nutrition may help individuals with 
cataracts and/or floaters. In fact, the complaint further alleges that 
a seven-year study by the National Eye Institute that included all of 
the primary ingredients available in Ocular Nutrition except lutein 
found that the ingredients used did not prevent the development or 
progression of cataract and did not assess the effects of any 
ingredients on floaters. According to the complaint, a statement issued 
by the National Eye Institute with regard to lutein cautions that while 
a number of studies suggest a link between lutein and decreased risk of 
eye disease, there is little, if any, definitive scientific

[[Page 11675]]

evidence at this time to support claims that lutein can decrease the 
risk of developing cataract.
    The proposed consent order contains provisions designed to prevent 
Hi-Health from engaging in similar acts and practices in the future. It 
also requires a monetary payment to the Commission.
    Part I of the proposed order bans unsubstantiated claims that the 
Ocular Nutrition supplement, or any substantially similar product (1) 
restores vision lost from macular degeneration, or (2) eliminates 
floaters. ``Substantially similar product'' is defined as any product 
that is (1) substantially similar in ingredients to Ocular Nutrition 
and (2) promoted for the treatment of eye diseases and conditions, 
including age-related macular degeneration, cataract, or floaters.
    Part II is a fencing-in provision that would prohibit 
unsubstantiated benefits, performance, efficacy, or safety claims for 
any covered product or service. The proposed order defines ``covered 
product or service'' as any health-related service or program, dietary 
supplement, food, drug, or device.
    Part III prohibits misrepresentations of the existence, contents, 
validity, results, conclusions, or interpretations of any test or study 
in connection with the marketing of any covered product or service.
    Part IV permits drug, food, or device claims approved by the Food 
and Drug Administration under any tentative final or final standard or 
any new drug application, pursuant to the Nutrition Labeling and 
Education Act of 1990, or under any new medical device application, 
respectively.
    Part V requires Hi-Health to pay $450,000 to the Commission as 
consumer redress no later than ten days after the order becomes final.
    Parts VI and VII require Hi-Health to keep copies of relevant 
advertisements and materials substantiating claims made in the 
advertisements, and provide copies of the order to certain of its 
personnel.
    Part VIII requires the corporate respondent to notify the 
Commission of changes in corporate structure.
    Part IX of the proposed order requires the individual respondent to 
notify the Commission of his employment status.
    Part X of the order requires Hi-Health to file compliance reports 
with the Commission, and Part XI provides that the order will terminate 
after twenty (20) years under certain circumstances.
    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. 05-4593 Filed 3-8-05; 8:45 am]
BILLING CODE 6750-01-P