Mia Rose Products, Inc., et al.; Proposed Consent Agreement With Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

[File No. 922 3373]

Mia Rose Products, Inc., et al.; Proposed Consent Agreement With

Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: In settlement of alleged violations of federal law prohibiting

unfair acts and practices and unfair methods of competition, this

consent agreement, accepted subject to final Commission approval, would

prohibit, among other things, a California-based corporation and its

officer from making any representation about the efficacy or

performance of any air cleaning, air freshening, or insecticidal

product, unless the respondents possess and rely upon competent and

reliable scientific evidence to substantiate the representation.

DATES: Comments must be received on or before July 5, 1994.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary,

room 159, 6th St. and Pa. Ave. NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT:Jeffrey Klurfeld or Linda Badger, FTC/

San Francisco Regional Office, 901 Market St., suite 570, San

Francisco, CA. 94103. (415) 744-7920.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal

Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Sec. 2.34 of the

Commission's Rules of Practice (16 CFR 2.34), notice is hereby given

that the following 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 sixty (60) days. Public comment is invited. Such comments or

views will be considered by the Commission and will be available for

inspection and copying at its principal office in accordance with

Section 4.9(b)(6)(ii) of the Commission's Rules of Practice (16 CFR

4.9(b)(6)(ii)).

Agreement Containing Consent Order To Cease and Desist

The Federal Trade Commission, having initiated an investigation of

certain acts and practices of Mia Rose Products, Inc., and Mia Palencar

(``respondents''), and it now appearing that proposed respondents are

willing to enter into an agreement containing an order to cease and

desist from the acts and practices being investigated,

It is hereby agreed by and between respondents and by their duly

authorized officers, and counsel for the Federal Trade Commission that:

1. Proposed respondent Mia Rose Products, Inc. is a corporation

organized, existing, and doing business under and by virtue of the laws

of the State of California. The principal place of business of this

corporation is located at 3555-B Harbor Gateway South, Costa Mesa,

California 92626.

Proposed respondent Mia Palencar is an officer of the corporate

respondent. She formulates, directs, and controls the acts and

practices of the corporate respondent and her address is the same as

that of corporate respondent.

2. Proposed respondents admit all the jurisdictional facts set

forth in the attached draft complaint.

3. Proposed respondents waive:

a. Any further procedural steps;

b. The requirement that the Commission's decision contain a

statement of findings of fact and conclusions of law;

c. All rights to seek judicial review or otherwise to challenge or

contest the validity of the order entered pursuant to this agreement;

and

d. All claims under the Equal Access to Justice Act, 5 U.S.C. 504.

4. This agreement shall not become part of the public record of the

proceeding unless and until it is accepted by the Commission. If this

agreement is accepted by the Commission, it, together with the attached

draft complaint, will be placed on the public record for a period of

sixty (60) days and information in respect thereto publicly released.

The Commission thereafter may either withdraw its acceptance of this

agreement and so notify the proposed respondents, in which event it

will take such action as it may consider appropriate, or issue and

serve its complaint (in such form as the circumstances may require) and

decision, in disposition of the proceeding.

5. This agreement is for settlement purposes only and does not

constitute an admission by proposed respondents of facts, other than

jurisdictional facts, or of violations of law as alleged in the draft

complaint here attached.

6. This agreement contemplates that it it is accepted by the

Commission, and if such acceptance is not subsequently withdrawn by the

Commission pursuant to the provisions of Sec. 2.34 of the Commission's

Rules, the Commission may, without further notice to proposed

respondents, (a) issue its complaint corresponding in form and

substance with the attached draft complaint and its decision containing

the following order to cease and desist in disposition of the

proceeding and (b) make information public in respect thereto. When so

entered, the order to cease and desist shall have the same force and

effect and may be altered, modified or set aside in the same manner and

within the same time provided by statute for other orders. The order

shall become final upon service. Delivery by the U.S. Postal Service of

the complaint and decision containing the agreed-to order to proposed

respondents' address as stated in this agreement shall constitute

service. Proposed respondents waive any right they may have to any

other manner of service. The complaint may be used in construing the

terms of the order, and no agreement, understanding, representation, or

interpretation not contained in the order or the agreement may be used

to vary or contradict the terms of the order.

7. Proposed respondents have read the attached draft complaint and

the following order. Proposed respondents understand that once the

order has been issued, they will be required to file one or more

compliance reports showing that they have fully complied with the

order. Proposed respondents further understand that they may be liable

for civil penalties in the amount provided by law for each violation of

the order after it becomes final.

Order

I

It is ordered that respondents Mia Rose Products, Inc., a

corporation, its successors and assigns, and its officers, and Mia

Palencar, individually and as an officer of said corporation, and

respondents' agents, representatives, and employees, directly or

through any corporation, subsidiary, division or other device, in

connection with the manufacturing, labelling, advertising, promotion,

offering for sale, sale or distribution of Air Therapy, Pet Air or any

substantially similar product in or affecting commerce, as ``commerce''

is defined in the Federal Trade Commission Act, do forthwith cease and

desist from representing, in any manner, directly or by implication,

that:

A. Such product is effective in cleaning or purifying indoor air.

B. Such product is more effective in cleaning or purifying indoor

air than conventional air cleaning products.

C. Spraying such product into the air eliminates smoke.

D. Spraying such product into the air eliminates pollen.

E. Spraying such product into the air eliminates airborne bacteria.

F. Spraying such product into the air eliminates household insects.

G. Spraying such product into the air eliminates pet dander.

H. Spraying such product into the air eliminates rather than masks

odors.

For the purposes of this Order, ``substantially similar product''

shall mean any air cleaning or air freshening product which contains d-

limonene as its sole active ingredient.

II

It is further ordered that respondents, Mia Rose Products, Inc., a

corporation, its successors and assigns, and its officers, and Mia

Palencar, individually and as an officer of said corporation, and

respondents' agents, representatives and employees, directly or through

any corporation, subsidiary, division or other device, in connection

with the manufacturing, labelling, advertising, promotion, offering for

sale, sale, or distribution of any air cleaning, air freshening, or

insecticidal product in or affecting commerce, as ``commerce'' is

defined in the Federal Trade Commission Act, do forthwith cease and

desist from representing, in any manner, directly or by implication,

the efficacy or performance of any such product, unless such

representation is true, and at the time of making such representation,

respondents possess and rely upon competent and reliable evidence,

which when appropriate must be competent and reliable scientific

evidence, that substantiates such representation. For purposes of this

Order, ``competent and reliable scientific evidence'' shall mean tests,

analyses, research, studies or other evidence based on the expertise of

professionals in the relevant area, that has been conducted and

evaluated in an objective manner by persons qualified to do so, using

procedures generally accepted in the profession to yield accurate and

reliable results.

III

It is further ordered that for five (5) years after the last date

of dissemination of any representation covered by this Order,

respondents, or their successors and assigns, shall maintain and upon

request make available to the Federal Trade Commission for inspection

and copying:

A. All materials that were relied upon in disseminating such

representation; and

B. All tests, reports, studies, surveys, demonstrations, or other

evidence in their possession or control that contradict, qualify, or

call into question such representation, or the basis relied upon for

such representation, including complaints from consumers.

IV

It is further ordered that provisions of this Order shall not apply

to the printing on cans of Air Therapy or Pet Air which were

manufactured prior to September 1, 1993, and shipped by respondents to

distributors or retailers prior to four (4) months from the date of

issuance of this Order.

V

It is further ordered that respondents shall notify the Commission

at least thirty (30) days prior to any proposed change in the corporate

respondent such as dissolution, assignment or sale resulting in the

emergence of a successor corporation, the creation or dissolution or

subsidiaries, or any other change in the corporation which may affect

compliance obligations arising out of this Order.

VI

It is further ordered that the individual respondent shall, for a

period of five (5) years after the date of service of this Order upon

her, promptly notify the Commission, in writing, of her discontinuance

of her present business or employment and of her affiliation with a new

business or employment. For each such new affiliation, the notice shall

include the name and address of the new business or employment, a

statement of the nature of the new business or employment, and a

description of respondent's duties and responsibilities in connection

with the new business or employment.

VII

It is further ordered that the corporate respondent shall, within

ten (10) days from the date of service of this Order upon them,

distribute a copy of this Order to each of its officers, agents,

representatives, independent contractors, and employees involved in the

preparation and placement of advertisements or promotional materials,

or is in communication with customers or prospective customers, or who

have any responsibilities with respect to the subject matter of this

Order; and for a period of five (5) years, from the date of issuance of

this Order, distribute a copy of this Order to all of respondent's

future such officers, agents, representatives, independent contractors,

and employees.

VIII

It is further ordered that respondents shall, within sixty (60)

days from the date of service of this Order upon them, and at such

other times as the Commission may require, file with the Commission a

report, in writing, setting forth in detail the manner and form in

which they have complied with this order.

Analysis of Proposed Consent Order To Aid Public Comment

The Federal Trade Commission has accepted an agreement, subject to

final approval, to a proposed consent order from respondents Mia Rose

Products, Inc., a California corporation, and Mia Rose Palencar,

individually and as an officer of the corporation.

The proposed consent order has been placed on the public record for

sixty (60) days for reception of comments by interested persons.

Comments received during this period will become part of the public

record. After sixty (60) days, the Commission will again review the

agreement and the comments received and will decide whether it should

withdraw from the agreement and take other appropriate action or make

final the agreement's proposed order.

This matter concerns two products, named ``Air Therapy'' and ``Pet

Air,'' sold by Mia Rose Products, Inc. (``the company''). Air Therapy

and Pet Air are air sprays made from the essential oils of citrus fruit

and/or herbs. These two products have identical ingredients, and are

both sold for their alleged air freshening, air cleaning and

insecticidal effects. The Commission's complaint charges that

respondents' advertising contained false and unsubstantiated

representations that these products are effective in eliminating indoor

air pollutants and household insects. Specifically, the complaint

alleges that respondents falsely represented that: (1) These products

are effective in cleaning or purifying indoor air; (2) these products

are more effective in cleaning or purifying indoor air than

conventional air cleaning products; (3) spraying these products into

the air eliminates smoke; (4) spraying these products into the air

eliminates pollen; (5) spraying these products into the air eliminates

airborne bacteria; (6) spraying Pet Air into the air eliminates pet

dander; (7) spraying Air Therapy into the air eliminates household

insects; and (8) spraying these products into the air eliminates,

rather than masks, odors.

The proposed consent order contains provisions designed to remedy

the violations charged and to prevent the respondents from engaging in

similar acts and practices in the future. Part I of the proposed order

would prohibit the company from making any of the false claims

delineated above for Air Therapy, Pet Air, or any products with

substantially similar ingredients.

Part II of the proposed order includes broad fencing-in relief,

requiring the respondents to cease and desist from representing the

efficacy or performance of any air cleaning, air freshening, or

insecticidal product unless such representation is true, and at the

time of making such representation, Mia Rose possesses and relies upon

competent and reliable evidence, which when appropriate must be

competent and reliable scientific evidence.

Part IV of the proposed order is a provision that allows the

company a period of four months from the date the proposed order

becomes final before it is obligated to re-word its labeling on its

current inventory of Air Therapy and Pet Air cans. All other provisions

of the order become effective immediately upon the Commission's

issuance of the order as final.

The proposed order also requires the respondents to maintain

materials relied upon to substantiate claims covered by the order; to

provide a copy of the consent agreement to all employees or

representatives involved in the preparation and placement of the

company's advertisements, or in communication with the company's

customers or prospective customers; to notify the Commission of any

changes in corporate structure that might affect compliance with the

order; to notify the Commission of certain changes in the business or

employment of the named individual respondent; and to file one or more

reports detailing compliance with the order.

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 agreement and proposed order or to modify in any

way their terms.

Donald S. Clark,

Secretary.

[FR Doc. 94-10948 Filed 5-5-94; 8:45 am]

BILLING CODE 6750-01-M