[Federal Register Volume 79, Number 19 (Wednesday, January 29, 2014)]
[Notices]
[Pages 4711-4713]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-01748]



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FEDERAL TRADE COMMISSION

[File No. 122-3010]


Nissan North America, Inc. and TBWA Worldwide, Inc.; Analyses of 
Proposed Consent Orders To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreements.

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SUMMARY: The consent agreements in these matters settle alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices. The attached Analyses of Proposed Consent Orders to Aid 
Public Comment describe both the allegations in the draft complaints 
and the terms of the consent orders--embodied in the consent 
agreements--that would settle these allegations.

DATES: Comments must be received on or before February 24, 2014.

ADDRESSES: Interested parties may file comments at https://ftcpublic.commentworks.com/ftc/nissannorthamericaconsent and https://ftcpublic.commentworks.com/ftc/tbwaconsent online or on paper, by 
following the instructions in the Request for Comments part of the 
SUPPLEMENTARY INFORMATION section below. Write ``Nissan North America 
Consent Agreement, Inc.--Consent Agreement; File No. 122-3010'' or 
``TBWA Worldwide, Inc.--Consent Agreement; File No. 122-3010'' on your 
comment and file your comments online at https://ftcpublic.commentworks.com/ftc/nissannorthamericaconsent and https://ftcpublic.commentworks.com/ftc/tbwaconsent https://ftcpublic.commentworks.com/ftc/fidelitynationalconsent by following the 
instructions on the web-based forms. If you prefer to file your 
comments on paper, mail or deliver your comments to the following 
address: Federal Trade Commission, Office of the Secretary, Room H-113 
(Annex D), 600 Pennsylvania Avenue NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: Matthew D. Gold, FTC Western Region, 
(415-848-5100), 901 Market Street, Suite 570 San Francisco, CA 94103.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, 
notice is hereby given that the above-captioned consent agreements 
containing consent orders to cease and desist, having been filed with 
and accepted, subject to final approval, by the Commission, have been 
placed on the public record for a period of thirty (30) days. The 
following Analyses To Aid Public Comment describe the terms of the 
consent agreements, and the allegations in the complaints. An 
electronic copy of the full text of the consent agreement packages can 
be obtained from the FTC Home Page (for January 23, 2014), on the World 
Wide Web, at http://www.ftc.gov/os/actions.shtm. Paper copies 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.
    You can file comments online or on paper. For the Commission to 
consider your comments, we must receive them on or before February 24, 
2014. Write ``Nissan North America Consent Agreement, Inc.--Consent 
Agreement; File No. 122-3010'' or ``TBWA Worldwide, Inc.--Consent 
Agreement; File No. 122-3010'' on your comment. Your comment--including 
your name and your state--will be placed on the public record of this 
proceeding, including, to the extent practicable, on the public 
Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a 
matter of discretion, the Commission tries to remove individuals' home 
contact information from comments before placing them on the Commission 
Web site.
    Because your comment will be made public, you are solely 
responsible for making sure that your comment does not include any 
sensitive personal information, like anyone'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. You are also solely 
responsible for making sure that your comment does not include any 
sensitive health information, like medical records or other 
individually identifiable health information. In addition, do not 
include any ``[t]rade secret or any commercial or financial information 
which . . . is privileged or confidential,'' as discussed in Section 
6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 
4.10(a)(2). In particular, do not include competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and you have to follow the procedure explained 
in FTC Rule 4.9(c), 16 CFR 4.9(c).\1\ Your comment will be kept 
confidential only if the FTC General Counsel, in his or her sole 
discretion, grants your request in accordance with the law and the 
public interest.
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    \1\ In particular, the written request for confidential 
treatment that accompanies the comment must include the factual and 
legal basis for the request, and must identify the specific portions 
of the comment to be withheld from the public record. See FTC Rule 
4.9(c), 16 CFR 4.9(c).
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    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/nissannorthamericaconsent and https://ftcpublic.commentworks.com/ftc/tbwaconsent by following the instructions on the web-based forms. 
If this Notice appears at http://www.regulations.gov/#!home, you also 
may file a comment through that Web site.
    If you file your comment on paper, write ``Nissan North America 
Consent Agreement, Inc.--Consent Agreement; File No. 122-3010'' or 
``TBWA Worldwide, Inc.--Consent Agreement; File No. 122-3010'' on your 
comment and on the envelope, and mail or deliver it to the following 
address: Federal Trade Commission, Office of the Secretary, Room H-113 
(Annex D), 600 Pennsylvania Avenue NW., Washington, DC 20580. If 
possible, submit your paper comment to the Commission by courier or 
overnight service.
    Visit the Commission Web site at http://www.ftc.gov to read this 
Notice and the news release describing it. The FTC Act and other laws 
that 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 on or before February 24, 2014. You can find more 
information, including routine uses permitted by the Privacy Act, in 
the Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

Analysis of Proposed Consent Order To Aid Public Comment in the Matter 
of Nissan North America, Inc.

    The Federal Trade Commission (``FTC'' or ``Commission'') has 
accepted, subject to final approval, an agreement containing consent 
order from Nissan North America, Inc. (``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

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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, marketing, and sale of the 
Nissan Frontier pickup truck by respondent. Respondent has marketed the 
Nissan Frontier to consumers through the ``Hill Climb'' advertisement, 
which respondent disseminated on television and over the internet. 
According to the FTC complaint, the Hill Climb advertisement 
deceptively demonstrated the capabilities of the Nissan Frontier.
    Specifically, according to the FTC complaint, the Hill Climb 
advertisement depicts a Nissan Frontier pickup truck rescuing a dune 
buggy that is trapped in sand on a steep hill. The Nissan Frontier 
speeds up the sand dune and stops immediately behind the dune buggy. 
The Nissan Frontier then pushes the dune buggy up and over the top of 
the hill. Onlookers are portrayed observing the feat in amazement. A 
narrator subsequently states, ``The mid-size Nissan Frontier with full-
size horsepower and torque. Innovation for doers, innovation for all.'' 
According to the complaint, the demonstration is portrayed in a 
realistic, ``YouTube'' style, as if shot with a mobile phone video 
camera.
    According to the complaint, respondent represented that the Hill 
Climb advertisement accurately represents the performance of an actual, 
unaltered Nissan Frontier pickup truck under the depicted conditions. 
The complaint further alleges that this claim is false, and thus 
violates the FTC Act, because the Nissan Frontier pickup truck is 
incapable of performing the feat depicted in the Hill Climb 
advertisement. In truth, according to the complaint, both the Nissan 
Frontier pickup truck and the dune buggy were dragged to the top of the 
hill by cables, and the sand dune was made to appear to be 
significantly steeper than it actually was.
    The proposed consent order contains provisions designed to prevent 
respondent from engaging in similar acts or practices in the future. 
Specifically, Part I prohibits respondent from misrepresenting, in the 
context of the advertisement as a whole, any material quality or 
feature of any Nissan-branded pickup truck through the depiction of a 
test, experiment, or demonstration. Part I specifies that nothing in 
the order shall be deemed to preclude the use of any production 
techniques that do not misrepresent a material quality or feature of 
the advertised truck.
    Part II of the proposed order requires respondent to maintain, and 
make available to the Commission upon written request, copies of 
relevant advertisements, as well as any and all unedited video and 
still images taken during the production of any advertisement depicting 
a demonstration, experiment, or test. Under Part II, respondent must 
also maintain any and all affidavits or certifications submitted by an 
employee, agent, or representative to any television network or other 
individual, where such affidavit or certification affirms the accuracy 
or integrity of a demonstration contained in an advertisement.
    Parts III, IV, and V of the proposed order require respondent 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 VI 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. It is not intended to constitute an official 
interpretation of the proposed order or to modify its terms in any way.

Analysis of Proposed Consent Order To Aid Public Comment in the Matter 
of TBWA Worldwide, Inc.

    The Federal Trade Commission (``FTC'' or ``Commission'') has 
accepted, subject to final approval, an agreement containing consent 
order from TBWA Worldwide, Inc. (``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 marketing of the Nissan 
Frontier pickup truck by respondent. Respondent is an advertising 
agency of Nissan North America, Inc., and prepared and disseminated the 
``Hill Climb'' advertisement, which promoted the Nissan Frontier pickup 
truck. According to the FTC complaint, the Hill Climb advertisement, 
which appeared on television and over the Internet, deceptively 
demonstrated the capabilities of the Nissan Frontier.
    Specifically, according to the FTC complaint, the Hill Climb 
advertisement depicts a Nissan Frontier pickup truck rescuing a dune 
buggy that is trapped in sand on a steep hill. The Nissan Frontier 
speeds up the sand dune and stops immediately behind the dune buggy. 
The Nissan Frontier then pushes the dune buggy up and over the top of 
the hill. Onlookers are portrayed observing the feat in amazement. A 
narrator subsequently states, ``The mid-size Nissan Frontier with full-
size horsepower and torque. Innovation for doers, innovation for all.'' 
According to the complaint, the demonstration is portrayed in a 
realistic, ``YouTube'' style, as if shot with a mobile phone video 
camera.
    According to the complaint, respondent represented that the Hill 
Climb advertisement accurately represents the performance of an actual, 
unaltered Nissan Frontier pickup truck under the depicted conditions. 
The complaint further alleges that this claim is false, and thus 
violates the FTC Act, because the Nissan Frontier pickup truck is 
incapable of performing the feat depicted in the Hill Climb 
advertisement. The complaint further alleges that respondent knew or 
should have known that the claim is false. In truth, according to the 
complaint, both the Nissan Frontier pickup truck and the dune buggy 
were dragged to the top of the hill by cables, and the sand dune was 
made to appear to be significantly steeper than it actually was.
    The Hill Climb advertisement was created by TBWA Chiat/Day Los 
Angeles, a division of TBWA Worldwide, Inc. Because TBWA Chiat/Day Los 
Angeles is not a formal corporate entity, the Commission's order names 
TBWA Worldwide, Inc., as respondent. Via the order's definition of 
``respondent,'' however, the injunctive provisions of the order apply 
only to TBWA Chiat/Day Los Angeles and to its sister agency, TBWA 
Chiat/Day New York.
    The proposed consent order contains provisions designed to prevent 
respondent from engaging in similar acts or practices in the future. 
Specifically, Part I prohibits respondent from misrepresenting, in the 
context of the advertisement as a whole, any material quality or 
feature of any pickup truck through the depiction of a test, 
experiment, or demonstration. Part I specifies that nothing in the 
order shall be deemed to preclude the use of any production techniques 
that do not misrepresent a material quality or feature of the 
advertised truck.

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Consistent with prior FTC cases involving advertising agencies, Part I 
also declares that respondent can be held liable for violating Part I 
of the order only if it knew or should have known that the test, 
experiment, or demonstration misrepresented a material quality or 
feature of the advertised truck.
    Part II of the proposed order requires respondent to maintain, and 
make available to the Commission upon written request, copies of 
relevant advertisements, as well as any and all unedited video and 
still images taken during the production of any advertisement depicting 
a demonstration, experiment, or test. Under Part II, respondent must 
also maintain any and all affidavits or certifications submitted by an 
employee, agent, or representative to any television network or other 
individual, where such affidavit or certification affirms the accuracy 
or integrity of a demonstration contained in an advertisement.
    Part III of the proposed order requires respondent to provide 
copies of the order to certain of its personnel. Parts IV and V of the 
proposed order require TBWA Worldwide, Inc., 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 VI 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. It is not intended to constitute an official 
interpretation of the proposed order or to modify its terms in any way.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2014-01748 Filed 1-28-14; 8:45 am]
BILLING CODE 6750-01-P