[Federal Register Volume 75, Number 21 (Tuesday, February 2, 2010)]
[Notices]
[Pages 5322-5324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2129]


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FEDERAL TRADE COMMISSION

[File No. 082 3159]


Indoor Tanning Association; 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 draft 
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 February 26, 2010.

ADDRESSES: Interested parties are invited to submit written comments 
electronically or in paper form. Comments should refer to ``Indoor 
Tanning Assoc., File No. 082 3159'' to facilitate the organization of 
comments. Please note that your comment --

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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://public.commentworks.com/ftc/indoortanningassoc) 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://public.commentworks.com/ftc/indoortanningassoc.) 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 ``Indoor Tanning 
Assoc., File No. 082 3159'' 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 (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 (202-326-2125), Bureau of 
Consumer Protection, 600 Pennsylvania Avenue, NW, Washington, D.C. 
20580.

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 January 26, 2010), 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, 
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 the Indoor Tanning Association (``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 or make final the agreement's proposed order.
    This matter involves the advertising and promotion of indoor 
tanning products and facilities. According to the FTC complaint, 
respondent represented, in various advertisements, that tanning, 
including indoor tanning, does not increase the risk of skin cancer. 
The complaint alleges that this claim is false and unsubstantiated 
because tanning, including indoor tanning, increases the risk of skin 
cancer, including squamous cell and melanoma skin cancers. Also, 
according to the complaint, respondent represented that: tanning, 
including indoor tanning, poses no danger; indoor tanning is approved 
by the government; and indoor tanning is safer than tanning outdoors 
because, in indoor tanning facilities, the amount of ultraviolet light 
is monitored and controlled. The FTC complaint alleges that these 
claims are false and unsubstantiated.
    The FTC complaint further charges that respondent represented that 
research shows that vitamin D supplements may harm the body's ability 
to fight disease; and that a recent study in the prestigious 
Proceedings of the National Academy of Sciences determined that the 
risks of not getting enough ultraviolet light far outweigh the 
hypothetical risk of skin cancer, that getting a healthy tan produces 
vitamin D, and that increased vitamin D has been linked to 
significantly decreasing your risk of contracting internal cancers, 
such as lung, kidney, or liver cancer. The complaint alleges that these 
claims are false and misleading. The FTC complaint also alleges that 
respondent represented that tanning causes the skin to generate vitamin 
D and has health benefits, but that respondent failed to disclose facts 
that would be material to

[[Page 5324]]

consumers in their purchase and use of indoor tanning services, 
specifically, that consumers can increase their vitamin D levels 
through ultraviolet levels lower than the amount needed to get a tan, 
and that ultraviolet radiation can injure the eyes and increases the 
risk of skin cancer. The complaint alleges that respondent's failure to 
disclose these facts, in light of the representation made, is a 
deceptive practice. Finally, the complaint alleges that respondent 
provided to others the means and instrumentalities to engage in 
deceptive acts or practices.
    The proposed consent order contains provisions designed to prevent 
respondent from engaging in similar acts or practices in the future. 
The order covers representations made in connection with the 
manufacturing, labeling, advertising, promotion, offering for sale, 
sale, or distribution of any covered product or service, in or 
affecting commerce. It does not cover representations made in non-
commercial settings or contexts, such as communications to legislative 
or executive bodies. The order defines a covered product or service as 
any ultraviolet lamp or sunlamp product, as defined in federal 
regulation 21 C.F.R. Sec.  1040.20, or any commercial facility where 
consumers may use ultraviolet lamps or sunlamp products.
    Part I of the order prohibits respondent from making the following 
representations: tanning, including indoor tanning, does not increase 
the risk of skin cancer; tanning, including indoor tanning, is safe or 
poses no danger; indoor tanning is approved by the government; and 
indoor tanning is safer than tanning outdoors because in indoor tanning 
facilities, the amount of ultraviolet light is monitored and 
controlled. The ban on representations that tanning, including indoor 
tanning, is safe, is fencing-in relief. Part II of the order prohibits 
respondent from misrepresenting (1) that research shows that vitamin D 
supplements may harm the body's ability to fight disease and (2) that a 
study in the Proceedings of the National Academy of Sciences 
determined: (a) that sun exposure does not cause skin cancer or 
melanoma, or that the risk of such cancer is only hypothetical; (b) 
that getting a tan is healthy; (c) that the risks of not getting enough 
ultraviolet light far outweigh the risk of skin cancer; or (d) that 
vitamin D has been linked to significantly decreasing the risk of 
contracting lung, kidney, or liver cancer.
    Part III prohibits respondent from making any representation about 
the safety, health-related efficacy or performance, or health-related 
risks or benefits, of any covered product or service; or about the 
sources, performance, efficacy, or health-related risks or benefits of 
vitamin D; unless the representation is non-misleading, and, at the 
time it is made, respondent possesses and relies upon competent and 
reliable scientific evidence that is sufficient in quality and quantity 
based on standards generally accepted in the relevant scientific fields 
to substantiate that the representation is true. For the purposes of 
the order, competent and reliable scientific evidence is defined as 
tests, analyses, research, studies, or other evidence that have been 
conducted and evaluated in an objective manner by qualified persons, 
that are generally accepted in the profession to yield accurate and 
reliable results, and whose results are consistent with the body of 
reliable scientific evidence relevant to the representation. Part IV of 
the order prohibits respondent from misrepresenting the existence, 
contents, validity, results, conclusions, or interpretations of any 
test, study, survey, or research.
    Part V of the order is a disclosure provision. It prohibits 
respondent from making any representation about the safety or health 
benefits of any covered product or service unless it makes the 
following disclosure, clearly and conspicuously, and in close proximity 
to the representation: ``NOTICE: Exposure to ultraviolet radiation may 
increase the likelihood of developing skin cancer and can cause serious 
eye injury.'' In the event, however, that respondent represents that 
exposure to ultraviolet radiation produces vitamin D in the body, or 
otherwise about the effectiveness or usefulness of such product for 
generation of vitamin D, the required disclosure shall be as follows: 
``NOTICE: You do not need to become tan for your skin to make vitamin 
D. Exposure to ultraviolet radiation may increase the likelihood of 
developing skin cancer and can cause serious eye injury.''
    Part VI of the order prohibits respondent from providing to any 
other person or entity any means or instrumentalities that contain any 
representation prohibited by the order. Part VII requires respondent to 
send a notice about the FTC's law enforcement action to all of its 
members, and all other entities to which it provided point-of-sale 
advertising on or after January 1, 2008; the required notice is 
attached to the order as Attachment A.
    Parts VIII, IX, X, and XI of the consent order require respondent 
to keep copies of relevant advertisements and materials substantiating 
claims made in the advertisements; to provide copies of the order to 
its 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 XII 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. 2010-2129 Filed 2-1-10; 2:45 pm]
BILLING CODE 6750-01-S