[Federal Register Volume 74, Number 125 (Wednesday, July 1, 2009)]
[Notices]
[Pages 31442-31443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15462]


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FEDERAL TRADE COMMISSION

[File No. 092 3035]


Constellation Brands, Inc.; 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 July 10, 2009.

ADDRESSES: Interested parties are invited to submit written comments 
electronically or in paper form. Comments should refer 
to``Constellation Brands, File No. 092 3035'' 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 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), 16 CFR 4.9(c).\1\
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    \1\ 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-ConstellationBrands) (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-ConstellationBrands). 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 ``Constellation 
Brands, File No. 092 3035`` reference both in the text and on the 
envelope,

[[Page 31443]]

and should be mailed or delivered to the following address: Federal 
Trade Commission, Office of the Secretary, Room H-135 (Annex D), 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: Janet Evans, Bureau of Consumer 
Protection, 600 Pennsylvania Avenue, NW, Washington, DC 20580, (202) 
326-3112.

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 June 10, 2009), on the World Wide Web, at (http://www.ftc.gov/os/actions.shtm). 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. 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 Constellation Brands, Inc. (``the company''). 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 unsubstantiated claims made in 
advertising for the beverage alcohol product Wide Eye schnapps, 
introduced by the company in 2007. Wide Eye contains 30% alcohol by 
volume plus caffeine. The company promoted Wide Eye through Internet 
advertising, including web video and print ads. Among other things, the 
company made the following claims about Wide Eye: ``Wake up @ 
WideEye.com,'' ``I am your wake up call,'' ``Wakes up sweet, then goes 
off like an alarm,'' and ``When you party with the world's first 
caffeinated schnapps it'll seem like the rest of the world is 
sleepwalking through life.''
    According to the FTC complaint, the company represented, expressly 
or by implication, that consumers who drink Wide Eye will remain alert 
when consuming alcohol. The complaint alleges that the company did not 
possess and rely upon a reasonable basis that substantiated the 
representation at the time it was made. Therefore, the representation 
was, and is, false and misleading.
    The proposed consent order contains provisions designed to prevent 
the company from engaging in similar acts and practices in the future. 
Part I of the proposed consent order prohibits the company, in 
connection with the advertising, sale, or distribution of Wide Eye or 
any other beverage alcohol product containing caffeine, ginseng, 
taurine, guarana, or any stimulant, from representing, expressly or by 
implication, including through the use of a product name or 
endorsement, that consumers who drink such a product will remain alert 
when consuming alcohol unless that representation is true, non-
misleading, and, at the time it is made, the company possesses and 
relies upon competent and reliable scientific evidence that 
substantiates the representation. Part II of the consent order further 
prevents the company from representing, expressly or by implication, 
including through the use of a product name or endorsement, that any 
beverage alcohol product or any ingredient therein will counteract the 
effects of alcohol consumption, unless that representation is true, 
non-misleading, and, at the time it is made, the company possesses and 
relies upon competent and reliable scientific evidence that 
substantiates the representation.
    Parts III through VI of the consent order require the company to 
keep copies of relevant advertisements and promotional materials, to 
provide copies of the order to certain of its personnel, to notify the 
Commission of changes in corporate structure, and to file compliance 
reports with the Commission. Part VII 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. E9-15462 Filed 6-30-09: 8:45 am]
BILLING CODE 6750-01-S