[Federal Register Volume 74, Number 79 (Monday, April 27, 2009)]
[Notices]
[Pages 19092-19094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9484]


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FEDERAL TRADE COMMISSION

[File No. 082 3145]


Kellogg Company; Analysis of Proposed Consent Order 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 complaint 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 May 19, 2009.

ADDRESSES: Interested parties are invited to submit written comments 
electronically or in paper form. Comments should refer to``Kellogg, 
File No. 082 3145'' to facilitate the organization of comments. Please 
note that your comment--including your name and your state--will be 
placed on the public record of this proceeding, including on the 
publicly accessible FTC website, at (http://www.ftc.gov/os/publiccomments.shtm).
    Because comments will be made public, they should not include any 
sensitive personal information, such as an individual's Social Security 
Number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. Comments also 
should not include any sensitive health information, such as medical 
records or other individually identifiable health information. In 
addition, comments should not include any ``[t]rade secret or any 
commercial or financial information which is obtained from any person 
and which is privileged

[[Page 19093]]

or confidential. . . .,'' as provided in Section 6(f) of the FTC Act, 
15 U.S.C. 46(f), and Commission Rule 4.10(a)(2), 16 CFR 4.10(a)(2). 
Comments containing material for which confidential treatment is 
requested must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with FTC Rule 4.9(c).\1\
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    \1\ FTC 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 FTC Rule 4.9(c), 16 CFR 4.9(c).
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    Because paper mail addressed to the FTC is subject to delay due to 
heightened security screening, please consider submitting your comments 
in electronic form. Comments filed in electronic form should be 
submitted by using the following weblink: (https://secure.commentworks.com/ftc-Kellogg) (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/ftc-Kellogg). If this Notice 
appears at (http://www.regulations.gov/search/index.jsp), you may also 
file an electronic comment through that website. The Commission will 
consider all comments that regulations.gov forwards to it. You may also 
visit the FTC website at (http://www.ftc.gov) to read the Notice and 
the news release describing it.
    A comment filed in paper form should include the ``Kellogg, File 
No. 082 3145`` 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-135, 600 Pennsylvania 
Avenue, NW, Washington, DC 20580. 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.
    The Federal Trade Commission Act (``FTC Act'') and other laws the 
Commission administers permit the collection of public comments to 
consider and use in this proceeding as appropriate. The Commission will 
consider all timely and responsive public comments that it receives, 
whether filed in paper or electronic form. Comments received will be 
available to the public on the FTC website, to the extent practicable, 
at (http://www.ftc.gov/os/publiccomments.shtm). As a matter of 
discretion, the Commission makes every effort to remove home contact 
information for individuals from the public comments it receives before 
placing those comments on the FTC website. 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.shtm).

FOR FURTHER INFORMATION CONTACT: Heather Hippsley or Kial S. Young, 
Bureau of Consumer Protection, 600 Pennsylvania Avenue, NW, Washington, 
D.C. 20580, (202) 326-3285.

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 the 
Commission 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 18, 2009), on the World Wide Web, at (http://www.ftc.gov/os/2009/04/index.htm). A paper copy can be obtained from the FTC Public 
Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW, Washington, 
D.C. 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. All comments should be filed as 
prescribed in the ADDRESSES section above, and must be received on or 
before the date specified in the DATES section.

Analysis of Agreement Containing Consent Order to Aid Public Comment

    The Federal Trade Commission (``FTC'' or ``Commission'') has 
accepted, subject to final approval, an agreement containing a consent 
order from Kellogg Company (``Respondent'').
    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 and take appropriate action or make final 
the agreement's proposed order.
    This matter involves the advertising and promotion of Kellogg's 
Frosted Mini-Wheats, a well-known breakfast cereal. According to the 
FTC complaint, Respondent represented, in various advertisements, that 
eating a bowl of Kellogg's Frosted Mini-Wheats cereal for breakfast is 
clinically shown to improve kids' attentiveness by nearly 20%. The 
complaint alleges that this claim is false or misleading because, in 
fact, in the clinical study referred to in respondent's advertisements, 
only about half the kids who ate Frosted Mini-Wheats cereal showed any 
improvement after three hours as compared to their pre-breakfast 
baseline. In addition, overall, only one in seven kids who ate the 
cereal improved their attentiveness by 18% or more, and only about one 
in nine improved by 20% or more.
    The FTC complaint also charges that Respondent represented, in 
other advertising, that eating a bowl of Kellogg's Frosted Mini-Wheats 
cereal for breakfast is clinically shown to improve kids' attentiveness 
by nearly 20% when compared to kids who ate no breakfast. The FTC 
alleges that this claim is also false or misleading, because in fact, 
kids in the clinical study who ate Frosted Mini-Wheats had an average 
of 10.6% better attentiveness three hours later than kids who had 
skipped breakfast. In addition, relatively few kids experienced better 
attentiveness near the 20% level.
    The proposed consent order contains provisions designed to prevent 
Respondent from engaging in similar acts and practices in the future. 
Part I of the proposed order prohibits Respondent from representing 
that (a) eating a bowl of Kellogg's Frosted Mini-Wheats cereal for 
breakfast is clinically shown to improve kids' attentiveness by nearly 
20%, or any other specific percentage; and (b) eating a bowl of 
Kellogg's Frosted Mini-Wheats cereal for breakfast is clinically shown 
to improve kids' attentiveness by nearly 20%, or any other specific 
percentage, compared to kids who ate no breakfast, unless the 
representation is true and non-misleading at the time it is made.
    Part II of the proposed order prohibits Respondent from making any 
representations in advertising for Frosted Mini-Wheats or any other 
morning food or snack food about the benefits, performance, or efficacy 
of the product for cognitive function, processes, or health, unless the 
representation is true and non- misleading. In addition, Respondent 
must possess competent and reliable scientific evidence for such 
claims.

[[Page 19094]]

    Part III of the proposed order prohibits Respondent from making 
misrepresentations in advertising for any morning food or snack food 
about the existence, contents, validity, results, conclusions, or 
interpretations of any test, study or research.
    Part IV of the proposed order states that the order does not 
prohibit Respondent from making representations for any product that 
are specifically permitted in labeling for that product by regulations 
issues by the FDA under the Nutrition Labeling and Education Act of 
1990.
    Parts V through VIII of the proposed order require Respondent to 
keep copies of relevant advertisements and materials substantiating 
claims made in the advertisements; to provide copies of the order to 
certain of their personnel; to notify the Commission of changes in 
corporate structure that might affect compliance obligations under the 
order; and to file compliance reports with the Commission. Part IX 
provides that the order will terminate after twenty (20) years, with 
certain exceptions.
    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. E9-9484 Filed 4-24-09: 8:45 am]
BILLING CODE 6750-01-S