[Federal Register Volume 75, Number 243 (Monday, December 20, 2010)]
[Notices]
[Pages 79377-79378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31823]
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FEDERAL TRADE COMMISSION
[File No. 102 3080]
NBTY, 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 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 January 14, 2011.
ADDRESSES: Interested parties are invited to submit written comments
electronically or in paper form. Comments should refer to ``NBTY, File
No. 102 3080'' 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 Web site, 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 Web link: https://ftcpublic.commentworks.com/ftc/nbty 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 Web
link: https://ftcpublic.commentworks.com/ftc/nbty. If this Notice
appears at http://www.regulations.gov/search/index.jsp, you may also
file an electronic comment through that Web site. The Commission will
consider all comments that regulations.gov forwards to it. You may also
visit the FTC Web site at http://www.ftc.gov/ to read the Notice and
the news release describing it.
A comment filed in paper form should include the ``NBTY, File No.
102 3080'' 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 Web site, 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 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.shtm.
FOR FURTHER INFORMATION CONTACT: Devin Domond (202-326-2610), Bureau of
Consumer Protection, 600 Pennsylvania Avenue, NW., Washington, DC
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 December 13, 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,
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 NBTY, Inc., NatureSmart LLC, and Rexall Sundown, Inc.
(collectively, ``Respondents'').
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 the following
products in Respondents' Disney/
[[Page 79378]]
Marvel line of children's multivitamin and mineral dietary supplements:
(1) Disney Princess Complete; (2) Disney Princess Gummies; (3) Disney
Pixar Cars Gummies; (4) Disney Winnie the Pooh Gummies; (5) Disney
Tigger & Pooh Gummies; (6) Disney Pixar Finding Nemo Gummies; (7)
Disney Pixar Wall-E Gummies; (8) Disney Pixar Toy Story Gummies; (9)
Marvel Heroes Complete; and (10) Marvel Heroes Gummies (collectively,
the ``NBTY Products'').
According to the FTC complaint, Respondents represented, in
advertisements, that the NBTY Products contained a significant amount
of DHA (docosahexaenoic acid, a polyunsaturated Omega-3 fatty acid) or
an amount comparable to 100 mg of DHA. The complaint alleges that this
claim is false or misleading because, in fact, a daily serving of the
NBTY products only contained either 0.1 mg of DHA (which is one
thousandth of 100 mg) or 0.05 mg of DHA (which is five ten-thousandths
of 100 mg).
The Commission also charges that Respondents represented that the
DHA provided by a daily serving of the NBTY Products promoted healthy
brain and eye development in children two years of age and older. The
FTC alleges that this claim is false or misleading because Respondents
failed to have evidence to substantiate it.
The proposed consent order contains provisions designed to prevent
Respondents from engaging in similar acts and practices in the future.
Part I of the proposed order prohibits Respondents from misrepresenting
that any product contains a specific ingredient or specific numerical
amount of any ingredient.
Part II of the proposed order prohibits Respondents from making any
representations in advertising for any product about the health
benefits, performance, or efficacy of the product, unless the
representation is true and non-misleading. In addition, Respondents
must possess competent and reliable scientific evidence sufficient in
quality and quantity, when considered in light of the entire body of
relevant and reliable scientific evidence, to support such claims as
true.
Part III of the proposed order states that the order does not
prohibit Respondents from making representations for any drug that are
permitted in labeling for that drug under any tentative or final
standard promulgated by the FDA, or under any new drug application
approved by the FDA. This part of the proposed order also states that
the order does not prohibit Respondents from making representations for
any product that are specifically permitted in labeling for that
product by regulations issued by the FDA under the Nutrition Labeling
and Education Act of 1990.
Part IV of the proposed order requires Respondents to pay two
million, one hundred thousand dollars ($2,100,000) to the Commission to
be used for equitable relief, including restitution, consumer redress,
and any attendant expenses for the administration of such equitable
relief.
Parts V through VIII of the proposed order require Respondents to
keep copies of relevant advertisements and materials substantiating
claims made in the advertisements; to provide copies of the order to
certain 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 their
terms in any way.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2010-31823 Filed 12-17-10; 8:45 am]
BILLING CODE 6750-01-P