[Federal Register Volume 71, Number 204 (Monday, October 23, 2006)]
[Notices]
[Pages 62109-62111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17666]


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FEDERAL TRADE COMMISSION


Agency Information Collection Activities; Comment Request

AGENCY: Federal Trade Commission (FTC or Commission).

ACTION: Notice.

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SUMMARY: The FTC is soliciting public comments on proposed information 
requests to food and beverage companies and quick service restaurants. 
These comments will be considered before the FTC submits a request for 
Office of Management and Budget (OMB) review under the Paperwork 
Reduction Act (PRA), 44 U.S.C. 3501-3520, of compulsory process orders 
to major food and beverage manufacturers and quick service restaurant 
companies in order to obtain information from those companies 
concerning, among other things, their marketing activities and 
expenditures targeted toward children and adolescents.

DATES: Comments on the proposed information requests must be received 
on or before December 21, 2006.

ADDRESSES: Interested parties are invited to submit written comments. 
Comments should refer to ``Food Industry Marketing to Children Report: 
Paperwork Comment; FTC File No. P064504'' 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, with two complete copies, to the following 
address: Federal Trade Commission/Office of the Secretary, Room H-135 
(Annex R), 600 Pennsylvania Avenue, NW., Washington, DC 20580. Because 
paper mail in the Washington area and at the Commission is subject to 
delay, please consider submitting your comments in electronic form, as 
prescribed below. However, if the comment contains any material for 
which confidential treatment is requested, it must be filed in paper 
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.
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    \1\ Any request for confidential treatment, including the 
factual and legal basis for the request, must accompany the comment 
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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    Comments filed in electronic form should be submitted by using the 
following Weblink: https://secure.commentworks.com/foodmarketingpaperworkcomment (and following the instructions on 
the Web-based form). To ensure that the Commission considers an 
electronic comment, you must file it on the Web-based form at the 
Weblink https://secure.commentworks.com/foodmarketingpaperworkcomment. If this notice appears at http://www.regulations.gov, you may also file an electronic comment through 
that Web site. The Commission will consider all comments that 
regulations.gov forwards to it.
    The Federal Trade Commission Act, 15 U.S.C. 42-58 (FTC Act), and 
other laws the Commission administers permit the collection of public 
comments to consider and use 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.

FOR FURTHER INFORMATION CONTACT: Requests for additional information 
should be addressed to Mary Johnson, 202-326-3115, or Rielle Montague, 
202-326-2645, Attorneys, Division of Advertising Practices, Bureau of 
Consumer Protection, Federal Trade Commission. The FTC staff contacts 
can be reached by mail at: Federal Trade Commission, 600 Pennsylvania 
Avenue, NW., NJ-3212, Washington, DC 20580.

SUPPLEMENTARY INFORMATION: On November 22, 2005, the President signed a 
bill appropriating funds for the Commission for FY 2006. Public Law 
109-108. The Conference Report (H.R. Rep. No. 109-272 (2005)) for this 
law incorporates by reference language from the Senate Report (S. Rep. 
No. 109-88 (2005)), instructing the FTC to prepare a report on food 
industry marketing activities and expenditures targeted to children and 
adolescents.\2\ To prepare the report, the Commission needs relevant 
information, including empirical data, on the nature and extent of 
marketing activities and expenditures targeted to children and 
adolescents.
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    \2\ The Senate Report requests that the FTC's report: Include an 
analysis of commercial advertising time on television, radio, and in 
print media; in-store marketing; direct payments for preferential 
shelf placement; events; promotions on packaging; all Internet 
activities; and product placements in television shows, movies, and 
video games.
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    On March 1, 2006, the FTC published a notice in the Federal 
Register requesting relevant information. 71 FR 10535. In response, the 
Commission received comments from five food industry associations, two 
public health advocacy organizations, a marketing trade organization, 
and one individual.\3\ In general, the comments suggested resources 
from which relevant information may be available \4\ and points to 
consider in developing the report. However, the comments presented 
minimal information, especially empirical data, on the nature and 
extent of marketing activities and expenditures targeted to children 
and adolescents. The Commission thus

[[Page 62110]]

requires additional data and information in order to complete the 
report.
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    \3\ The comments are available at http://www.ftc.gov/os/comments/foodmarketingstudy/index.htm.
    \4\ Many of the suggested resources charge substantial amounts 
for information. Public Law 109-108 did not contain any specific 
funding to acquire information for this study.
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    The FTC has the authority to compel production of this data and 
information from food and beverage companies and quick service 
restaurants under Section 6(b) of the FTC Act, 15 U.S.C. 46(b). The 
Commission intends to send its information requests to the ultimate 
parents of these types of companies to assure that no relevant data 
from affiliated or subsidiary companies goes unreported. Because the 
number of separately incorporated companies affected by the 
Commission's requests will exceed ten entities, the Commission intends 
to seek OMB clearance under the Paperwork Reduction Act (PRA) before 
sending any information requests.
    Under the PRA, federal agencies must obtain approval from OMB for 
each collection of information they conduct or sponsor. ``Collection of 
information'' means agency requests or requirements that members of the 
public submit reports, keep records, or provide information to a third 
party. (44 U.S.C. 3502(3), 5 CFR 1320.3(c)). As required by the PRA, 44 
U.S.C. 3506(c)(2)(A), the FTC is providing this opportunity for public 
comment before requesting that OMB grant the clearance for the proposed 
information collection requirements.
    The FTC invites comments on: (1) Whether the proposed collections 
of information are necessary for the proper performance of the 
functions of the FTC, including whether the information will have 
practical utility; (2) the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used; (3) ways to enhance 
the quality, utility, and clarity of the information to be collected; 
and (4) ways to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses. All comments should be filed as 
prescribed in the ADDRESSES section above, and must be received on or 
before December 21, 2006.

A. Information Requests to Food and Beverage Industry Members

1. Description of the Collection of Information and Proposed Use

    The FTC proposes to send information requests to approximately 
fifty (50) ultimate parent companies of food and beverage and quick 
service restaurant companies in the United States (``industry 
members''). The companies that are likely to receive these information 
requests are those selling the categories of food and beverage products 
that appear to be advertised to children most frequently. Specifically, 
these categories of products are likely to include quick service 
restaurant items, breakfast cereals, snack foods, candy and gum, 
carbonated and noncarbonated beverages, frozen and chilled desserts, 
prepared meals, and dairy products, including milk and yogurt. In 
addition, the FTC proposes to collect information from major marketers 
of fruits and vegetables to ensure that data are gathered regarding 
efforts to promote consumption of these foods among children and 
adolescents.
    The information requests will seek data regarding, among other 
things: (1) The types of foods marketed to children and adolescents; 
(2) the types of measured \5\ and unmeasured \6\ media techniques used 
to market products to children and adolescents; (3) the amount spent to 
communicate marketing messages in measured and unmeasured media to 
children and adolescents; and (4) the amount of commercial advertising 
time in measured media directed to children and adolescents that 
results from this spending.
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    \5\ ``Measured media'' includes methods such as television, 
print (magazine and newspaper), radio, outdoor advertising, and some 
forms of Internet advertising.
    \6\ ``Unmeasured media'' includes methods such as in-store 
marketing (including shelf placement), events, package promotions, 
and product placement in entertainment media (including television 
shows, movies, video games, and music recordings).
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    It should be noted that subsequent to this notice, any destruction, 
removal, mutilation, alteration, or falsification of documentary 
evidence that may be responsive to this information collection within 
the possession or control of a person, partnership, or corporation 
subject to the FTC Act may be subject to criminal prosecution. 15 
U.S.C. 50; see also 18 U.S.C. 1505.
    Section 6(f) of the FTC Act, 15 U.S.C. 46(f), bars the Commission 
from publicly disclosing trade secrets or confidential commercial or 
financial information it receives from persons pursuant to, among other 
methods, special orders authorized by Section 6(b) of the FTC Act. Such 
information also would be exempt from disclosure under the Freedom of 
Information Act (5 U.S.C. 552(b)(4)). Moreover, under Section 21(c) of 
the FTC Act, 15 U.S.C. 57b-2(c), a submitter who designates a 
submission as confidential is entitled to 10 days' advance notice of 
any anticipated public disclosure by the Commission, assuming that the 
Commission has determined that the information does not, in fact, 
constitute 6(f) material. Although materials covered under one or more 
of these various sections are protected by stringent confidentiality 
constraints, the FTC Act and the Commission's rules authorize 
disclosure in limited circumstances (e.g., official requests by 
Congress, requests from other agencies for law enforcement purposes, 
and administrative or judicial proceedings). Even in those limited 
contexts, however, the Commission's rules may afford protections to the 
submitter, such as advance notice to seek a protective order in 
litigation. See 15 U.S.C. 57b-2; 16 CFR 4.9-4.11.
    Finally, the information presented in the report will not reveal 
company-specific data. See 15 U.S.C. 57b-2(d)(1)(B). Rather, the 
Commission anticipates providing information on an anonymous or 
aggregated basis, in a manner sufficient to protect individual 
companies' confidential information, to provide a factual summary of 
food industry marketing activities and expenditures targeted to 
children and adolescents.

2. Estimated Hours Burden

    The FTC staff's estimate of the hours burden is based on the time 
required to respond to each information request. The Commission intends 
to issue the information requests to approximately 50 parent companies 
of food and beverage and quick service restaurant advertisers. Because 
these companies vary in size, in the number of products that they 
market to children and adolescents, and in the extent and variety of 
their marketing and advertising, the FTC staff has provided a range of 
the estimated hours burden.
    Based upon its knowledge of the industries, the staff estimates, on 
average, that the time required to gather, organize, format, and 
produce such responses ranges between 80-120 hours per information 
request for companies that market a single category of product to 
children and adolescents. Staff estimates that companies that market 
multiple categories of products to children and adolescents would spend 
between 120-300 hours to respond to an information request. The total 
estimated burden per company is based on the following:
    Identify, obtain, and organize sales information, prepare response: 
15-35 hours.

[[Page 62111]]

    Identify, obtain, and organize information on advertising and 
marketing expenditures, prepare response: 15-75 hours.
    Identify, obtain, and organize media placement information, prepare 
response: 40-160 hours.
    Identify, obtain, and organize information regarding marketing 
policies, prepare response: 10-30 hours.
    Total 80-300 hours.
    Assuming that approximately 35 information requests are sent to 
parent companies that market a single category of product to children 
and adolescents, staff estimates a total burden for these companies of 
3,500 hours (35 companies x 100 average burden hours per company). 
Assuming that approximately 15 information requests are sent to parent 
companies that market multiple categories of products to children and 
adolescents, staff estimates a total of approximately 3,150 hours (15 
companies x 210 average burden hours per company). Thus, the staff's 
estimate of the total burden is approximately 6,650 hours. These 
estimates include any time spent by separately incorporated 
subsidiaries and other entities affiliated with the ultimate parent 
company that has received the information request.

3. Estimated Cost Burden

    It is difficult to calculate with precision the labor costs 
associated with this data production, as they entail varying 
compensation levels of management and/or support staff among companies 
of different sizes. Financial, legal, marketing, and clerical personnel 
may be involved in the information collection process. The FTC staff 
has assumed that professional personnel and outside legal counsel will 
handle most of the tasks involved in gathering and producing responsive 
information, and has applied an average hourly wage of $250/hour for 
their labor. Thus, the staff estimates that the total labor costs for 
the information requests will be $1,662,500 (($250 x 3,500 hours for 
companies that market a single category) + ($250 x 3,150 hours for 
companies that market multiple categories)).
    FTC staff estimates that the capital or other non-labor costs 
associated with the information requests are minimal. Although the 
information requests may necessitate that industry members maintain the 
requested information provided to the Commission, they should already 
have in place the means to compile and maintain business records.

John D. Graubert,
Acting General Counsel.
 [FR Doc. E6-17666 Filed 10-20-06; 8:45 am]
BILLING CODE 6750-01-P