[Code of Federal Regulations]
[Title 16, Volume 1]
[Revised as of January 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 16CFR3.40]

[Page 67]
 
                     TITLE 16--COMMERCIAL PRACTICES
 
                   CHAPTER I--FEDERAL TRADE COMMISSION
 
PART 3_RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS--Table of Contents
 
                 Subpart D_Discovery; Compulsory Process
 
Sec. 3.40  Admissibility of evidence in advertising substantiation cases.

    (a) If a person, partnership, or corporation is required through 
compulsory process under section 6, 9 or 20 of the Act issued after 
October 26, 1977 to submit to the Commission substantiation in support 
of an express or an implied representation contained in an 
advertisement, such person, partnership or corporation shall not 
thereafter be allowed, in any adjudicative proceeding in which it is 
alleged that the person, partnership, or corporation lacked a reasonable 
basis for the representation, and for any purpose relating to the 
defense of such allegation, to introduce into the record, whether 
directly or indirectly through references contained in documents or oral 
testimony, any material of any type whatsoever that was required to be 
but was not timely submitted in response to said compulsory process. 
Provided, however, that a person, partnership, or corporation is not, 
within the meaning of this section, required through compulsory process 
to submit substantiation with respect to those portions of said 
compulsory process to which such person, partnership, or corporation has 
raised good faith legal objections in a timely motion pursuant to the 
Commission's Rules of Practice and Procedure, until the Commission 
denies such motion; or if the person, partnership, or corporation 
thereafter continues to refuse to comply, until such process has been 
judicially enforced.
    (b) The Administrative Law Judge shall, upon motion, at any stage 
exclude all material that was required to be but was not timely 
submitted in response to compulsory process described in paragraph (a) 
of this section, or any reference to such material, unless the person, 
partnership, or corporation demonstrates in a hearing, and the 
Administrative Law Judge finds, that by the exercise of due diligence 
the material could not have been timely submitted in response to the 
compulsory process, and that the Commission was notified of the 
existence of the material immediately upon its discovery. Said findings 
of the Administrative Law Judge shall be in writing and shall specify 
with particularity the evidence relied upon. The rules normally 
governing the admissibility of evidence in Commission proceedings shall 
in any event apply to any material coming within the above exception.

[42 FR 56500, Oct. 10, 1977; 42 FR 61450, Dec. 5, 1977, as amended at 45 
FR 45578, July 7, 1980]