Lifestyle Fascination, Inc., et al.; Proposed Consent Agreement With Analysis to Aid Public Comment

FEDERAL TRADE COMMISSION

[File No. 912-3123]

Lifestyle Fascination, 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 New Jersey-based corporation, its

owner, and its general manager from making specified false

representations for five products (a gasoline additive, an automobile

retrofit device, an electric stimulation device, an electric

acupuncture device, and pinhole eyeglasses) advertised in their

catalog. It would also prohibit the respondents from making any claim

regarding the performance, safety, attributes, benefits, or efficacy of

the electric and electronic products they market unless they possess

competent and reliable evidence that substantiates the representation.

In addition, the consent agreement would prohibit the respondents from

misrepresenting the existence, contents, validity, results,

conclusions, or interpretations of any test of study.

DATES: Comments must be received on or before July 25, 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:

Joel Winston, FTC/S-4002, Washington, DC 20580, (202) 326-3153.

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

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

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

In the matter of Lifestyle Fascination, Inc., a corporation; Eli

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

Simon Pantierer, individually.

Agreement Containing Consent Order to Cease and Desist

The Federal Trade Commission, having initiated an investigation of

certain acts and practices of Lifestyle Fascination, Inc., a

corporation, and Eli Zabare, individually and as an officer of said

corporation, and Simon Pantierer, individually (``proposed

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 Lifestyle Fascination, Inc., by

its duly authorized officer, and Eli Zabare, individually and as an

officer of said corporation, and Simon Pantierer, individually, and

their attorney, and counsel for the Federal Trade Commission that:

1. Proposed respondent Lifestyle Fascination, Inc. is a corporation

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

of the State of Delaware, with its office and principal place of

business at 12 Progress Place, Jackson, New Jersey 08527.

Proposed respondent Eli Zabare is the owner and sole officer of

Lifestyle Fascination, Inc. He formulated, directed, and controlled the

acts and practices of said corporation. His business address is 12

Progress Place, Jackson, New Jersey 08527.

Proposed respondent Simon Pantierer is the general manager of

Lifestyle Fascination, Inc. He formulated, directed, and controlled the

acts and practices of said corporation. His business address is 12

Progress Place, Jackson, New Jersey 08527.

2. Proposed respondents admit all the jurisdictional facts set

forth in the draft of complaint here attached.

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; and (c) all rights to seek

judicial review or otherwise to challenge or contest the validity of

the order entered pursuant to this agreement.

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 draft of

the complaint contemplated hereby, 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 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 this proceeding.

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

constitute an admission by proposed respondents that the law has been

violated as alleged in the attached draft complaint or that the facts

as alleged in the attached draft complaint, other than the

jurisdictional facts, are true.

6. This agreement contemplates that, if 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, (1) issue its complaint corresponding in form and

substance with the draft of complaint here attached and its decision

containing the following order to cease and desist in disposition of

the proceeding, and (2) 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 U.S. Postal

Service of the decision containing the agreed-to order to proposed

respondents' addresses as stated in this agreement shall constitute

service. Proposed respondents waive any right they might 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 in the agreement may be

used to vary or contradict the terms of the order.

7. Proposed respondents have read the complaint and the order

contemplated hereby. They understand that once the order has been

issued, they will be required to file one or more compliance reports

showing 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 Lifestyle Fascination, Inc., a

corporation, its successors and assigns, and its officers, Eli Zabare,

individually and as an officer of said corporation, and Simon

Pantierer, individually, and respondents' agents, representatives and

employees, directly or through any corporation, subsidiary, division or

other device, in connection with the advertising, promotion, offering

for sale, sale or distribution of Fuelon, or any substantially similar

fuel additive device, 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. Under normal driving conditions, when used as directed,

consumers can increase their gas mileage by between 15% and 40% by

adding such product to their gas tanks; or

B. The use of such product will ensure that a car will pass

government emissions inspections.

II

It Is Further Ordered that respondents Lifestyle Fascination, Inc.,

a corporation, its successors and assigns, and its officers, Eli

Zabare, individually and as an officer of said corporation, and Simon

Pantierer, individually, and respondents' agents, representatives and

employees, directly or through any corporation, subsidiary, division or

other device, in connection with the advertising, promotion, offering

for sale, sale or distribution of the Vitalizer, or any substantially

similar automobile retrofit device, 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. Under normal driving conditions, when used as directed,

consumers will increase their gas mileage by 23%, or up to 23%, when

such product is installed in their automobiles; or

B. Under normal driving conditions, when used as directed,

consumers can obtain reduced exhaust emissions of 90%, or up to 90%,

when such product is installed in their automobiles.

III

It Is Further Ordered that respondents Lifestyle Fascination, Inc.,

a corporation, its successors and assigns, and its officers, Eli

Zabare, individually and as an officer of said corporation, and Simon

Pantierer, individually, and respondents' agents, representatives and

employees, directly or through any corporation, subsidiary, division or

other device, in connection with the advertising, promotion, offering

for sale, sale or distribution of Aerobic Eye Exercise Glasses, or any

other eyeglasses with opaque lenses and multiple pinholes, 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. Wearing such product results in long-term improvement in the

vision of persons with vision problems; or

B. Such product, while being worn, is an adequate substitute for

prescription glasses or contact lenses to improve vision.

IV

It Is Further Ordered that respondents Lifestyle Fascination, Inc.,

a corporation, its successors and assigns, and its officers, Eli

Zabare, individually and as an officer of said corporation, and Simon

Pantierer, individually, and respondents' agents, representatives and

employees, directly or through any corporation, subsidiary, division or

other device, in connection with the advertising, promotion, offering

for sale, sale or distribution of any product in or affecting commerce,

as ``commerce'' is defined in the Federal Trade Commission Act, do

forthwith cease and desist from misrepresenting, directly or by

implication, the existence, contents, validity, results, conclusions or

interpretations of any test or study.

V

It Is Further Ordered that respondents Lifestyle Fascination, Inc.,

a corporation, its successors and assigns, and its officers, Eli

Zabare, individually and as officer of said corporation, and Simon

Pantierer, individually, and respondents' agents, representatives and

employees, directly or through any corporation, subsidiary, division or

other device, in connection with the advertising, promotion, offering

for sale, sale or distribution of any automotive fuel economy product,

including but not limited to any automobile gasoline additive, engine

oil additive, or automobile retrofit device (as ``automobile retrofit

device'' is defined in section 511 of the Motor Vehicle Information and

Cost Savings Act, 15 U.S.C. 2011) in or affecting commerce, as

``commerce'' is defined in the Federal Trade Commission Act, do

forthwith cease and desist from representing, directly or by

implication, that use of such device will or may result in fuel economy

improvement, unless, and only to the extent, respondents possess and

rely on competent and reliable scientific tests which substantiate the

representations, such as:

A. Chassis dynamometer tests done according to procedures that

simulate typical urban and highway driving patterns, such as the then

current urban and highway driving test schedules established by the

Environmental Protection Agency; or

B. Track or road tests done according to procedures that simulate

urban and highway driving patterns, such as the then current procedures

established in the Society of Engineers J1082b test protocol.

Respondents shall, when using the results of any tests required by

this part, clearly and conspicuously disclose the limitations upon the

applicability of the results to any automobile, truck, recreational

vehicle, or other motor vehicle. Where the results of such tests are

used in connection with the representation of fuel economy improvement

expressed in miles per gallon (or liter), miles per tankful, or

percentage, or where the representation of the benefit is expressed as

a monetary saving in dollars or percentages, all advertising and other

promotional materials that contain the representation must also clearly

and conspicuously disclose the following disclaimer: ``REMINDER: Your

actual saving may vary. It depends on the kind of driving you do, how

you drive, and the condition of your car.''

VI

It Is Further Ordered that respondents Lifestyle Fascination, Inc.,

a corporation, its successors and assigns, and its officers, Eli

Zabare, individually and as an officer of said corporation, and Simon

Pantierer, individually, and respondents' agents, representatives and

employees, directly or through any corporation, subsidiary, division or

other device, in connection with the advertising, promotion, offering

for sale, sale or distribution of any product in or affecting commerce,

as ``commerce'' is defined in the Federal Trade Commission Act, do

forthwith cease and desist from representing, directly or by

implication, that:

A. Use of such product can or will have any effect on the user's

intelligence; energy levels; muscle strength or tone; weight; mental

concentration; pain; depression or anxiety; sleep patterns or

requirements; short or long term memory; cravings for or withdrawal

symptoms from drugs or alcohol; or any other effect on health or the

structure or function of the human body; or

B. Use of such product can or will have any effect on acceleration,

power, engine condition, exhaust emissions, or any other aspect of

automobile performance;

unless at the time of making such representation, respondents possess

and rely upon 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 have 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.

VII

It Is Further Ordered that respondents Lifestyle Fascination, Inc.,

a corporation, its successors and assigns, and its officers, Eli

Zabare, individually and as an officer of said corporation, and Simon

Pantierer, individually, and respondents' agents, representatives and

employees, directly or through any corporation, subsidiary, division or

other device, in connection with the advertising, promotion, offering

for sale, sale or distribution of any consumer electric or electronic

product in or affecting commerce, as ``commerce'' is defined in the

Federal Trade Commission Act, do forthwith cease and desist from making

any representation, directly or by implication, regarding the

performance, safety, attributes, benefits, or efficacy of such product,

unless, 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. Provided that, the terms of this part shall not

apply to the advertising, promotion, offering for sale, sale, or

distribution of any television; videocassette, audiocassette, or

compact disc player or recorder; radio; stereo component; telephone;

shaver; vacuum cleaner; kitchen appliance; hair grooming appliance;

binoculars; exercise equipment; or camera. Further provided that,

nothing in this part shall be construed as exempting from this Order

any product otherwise subject to the terms of any other part of this

Order.

VIII

It Is Further Ordered that respondents Lifestyle Fascination, Inc.,

a corporation, its successors and assigns, and its officers, Eli

Zabare, individually and as an officer of said corporation, and Simon

Pantierer, individually, and respondents' agents, representatives and

employees, directly or through any corporation, subsidiary, division or

other device, in connection with the advertising, promotion, offering

for sale, sale or distribution of any product represented, directly or

by implication, or intended to have any effect on health or the

structure or function of the human body, in or affecting commerce, as

``commerce'' is defined in the Federal Trade Commission Act, do

forthwith cease and desist from representing that any endorsement (as

endorsement is defined in 16 CFR 255.0(b)) of any such product

represents the typical or ordinary experience of members of the public

who use such product, unless such is the fact.

IX

It Is Further Ordered that respondents Lifestyle Fascination, Inc.,

a corporation, its successors and assigns, and its officers, Eli

Zabare, individually and as an officer of said corporation, and Simon

Pantierer, individually, and respondents' agents, representatives and

employees, shall, for three (3) years from the date of the last

dissemination of each representation which is subject to this Order,

maintain and upon reasonable request make available to the Federal

Trade Commission for inspection and copying:

A. All materials that were relied upon by respondent(s) in

disseminating any representation covered by this Order; and

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

evidence in any respondent's possession or control that contradict,

qualify, or call into question such representation, or the basis upon

which respondent relied for such representation, including complaints

from consumers.

X

It Is Further Ordered that respondent Lifestyle Fascination, Inc.,

or its successors and assigns, shall:

A. Within thirty (30) days after service of this Order, provide a

copy of this Order to each of its current principals, officers,

directors, and managers, and to all personnel, agents, and

representatives having sales, advertising, or policy responsibility

with respect to the subject matter of this Order; and

B. For a period of five (5) years from the date of entry of this

Order, provide a copy of this Order to each of its principals,

officers, directors, and managers, and to all personnel, agents, and/or

representatives having sales, advertising, or policy responsibility

with respect to the subject matter of this Order within three (3) days

after the person commences his or her responsibilities.

XI

It Is Further Ordered that respondents Eli Zabare and Simon

Pantiere, for a period of ten (10) years from the date of entry of this

Order, notify the Commission within thirty (30) days of the

discontinuance of his present business or employment and of his

affiliation with any new business or employment which involves the sale

of consumer products. Each notice of affiliation with any new business

or employment shall include respondent's new business address and

telephone number, current home address, and a statement describing the

nature of the business or employment and his duties and

responsibilities.

XII

It Is Further Ordered that respondents Lifestyle Fascination, Inc.,

its successors and assigns, and its officers, Eli Zabare, individually

and as an officer of said corporation, and Simon Pantierer,

individually, shall notify the Federal Trade Commission at least thirty

(30) days prior to any proposed change in the corporate respondent,

including but not limited to dissolution, assignment or sale resulting

in the emergence of a successor corporation, the creation or

dissolution of subsidiaries or affiliates, or any other change in the

corporation which may affect compliance obligations arising under this

Order.

XIII

It Is Further Ordered that respondents Lifestyle Fascination, Inc.,

its successors and assigns, and its officers, Eli Zabare, individually

and as an officer of said corporation, and Simon Pantierer,

individually, shall, within sixty (60) days after service of this

Order, and at such other times as the Federal Trade 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 to a

proposed consent order from Lifestyle Fascination, Inc.

(``Lifestyle''), Eli Zabare, an officer of Lifestyle, and Simon

Pantierer.

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 comments received and will decide whether it should

withdraw from the agreement or make final the agreement's proposed

order.

This matter concerns five products advertised by the respondents in

the Lifestyle Fascination catalog: Fuelon, a gasoline additive; the

Vitalizer an automobile retrofit device; the Brain Tuner, a cranio-

electric stimulation device, the Rhythm, an electronic acupuncture

device; and the Aerobic Eye Exercise Glasses, pinhole eyeglasses.

The Commission's proposed complaint alleges that the respondents

falsely represented that the addition of Fuelon to gasoline would

increase a car's gas mileage by between 15% and 40% and ensure that

cars pass government emissions inspections. The proposed complaint

further alleges that the respondents falsely represented that they

relied upon a reasonable basis for those claims, and for their further

representation that Fuelon would provide the benefits of an engine

tune-up.

The proposed complaint alleges that the respondents falsely

represented that the Vitalizer would increase gas mileage by up to 23%;

decrease automobile emissions by up to 90%; and that tests, research,

and expert evaluations proved these claims. The complaint further

alleges that the respondents falsely represented that they relied upon

a reasonable basis for these representations, and for their further

representation that use of the Vitalizer would increase engine power.

The proposed complaint further alleges that, in advertising the

Brain Tuner, the respondents falsely represented that they relied upon

a reasonable basis for their representations that use of the Brian

Tuner would increase one's I.Q., increase energy levels, improve

concentration, control pain, reduce depression and anxiety, normalize

sleep patterns and reduce sleep requirements, improve memory, and

reduce cravings for and withdrawal symptoms from drugs and alcohol. The

proposed complaint further alleges that the respondents falsely

represented that scientific studies proved that use of the Brain Tuner

would produce these results.

The proposed complaint further alleges that, in advertising the

Rhythm, the respondents falsely represented that they relied upon a

reasonable basis for their representations that use of the Rhythm would

relieve muscle, digestive, and nervous ailments; tone muscles; help the

user lose weight; and relieve backaches, headaches, muscle pain, stiff

shoulders, insomnia, and fatigue.

With respect toe the respondent's advertising for the Aerobic Eye

Exercise Glasses, the proposed complaint alleges that the respondents

falsely represented that wearing the glasses results in long-term

vision improvement, that they are an adequate substitute for

prescription glasses or contact lenses, and that the testimonial

contained in the advertisement reflected the typical or ordinary

experience of consumers who have used the product. The proposed

complaint further alleges that the respondents falsely represented that

they relied upon a reasonable basis for these representations.

The proposed consent order contains provisions designed to prevent

the respondents from engaging in similar acts and practices in the

future. Parts I, II, and III of the proposed order prohibit the

respondents from making the representations challenged as false in the

proposed complaint for Fuelon, Vitalizer, and the Aerobic Eye Exercise

Glasses.

Part IV of the proposed order prohibit the respondents from

misrepresenting the existence, contents validity, results, conclusions,

or interpretations of any test or study.

Part V of the proposed order prohibits the respondents from

representing that use of any automotive fuel economy product will

result in fuel economy improvement unless they rely upon competent ad

reliable scientific tests which substantiate such representations. This

part of the order lists two test procedures as examples of ``competent

and reliable scientific tests`` of automotive fuel economy products and

further requires the respondents to disclose any limitations upon the

applicability of any test results to other vehicles. This part also

requires the respondents to include the following disclaimer when

making certain fuel economy improvement claims: ``REMINDER: Your actual

saving may vary. It depends on the kind of driving you do how you

drive, and the condition of your car.''

Part IV of the proposed order prohibits the respondents from

representing that the use of any product will have any effect on

specific medical conditions or any other effect on health or the

structure or function of the human body, or that any product will have

any effect on automobile performance, unless they possess competent and

reliable scientific evidence that substantiates the representation.

Part VII of the proposed order prohibits the respondents from

making any representation for any consumer electric or electronic

product regarding its performance, safety, attributes, benefits or

efficacy unless they possess competent and reliable evidence, which,

when appropriate, must be competent and reliable scientific evidence

that substantiates the representation. The terms of Part VII do not

apply to representations made for a specified list of products;

however, these products are not exempted from the other terms of the

order.

Part VIII of the proposed order prohibits the respondents from

misrepresenting that any endorsement for a product represented or

intended to have any effect on health or the structure or function of

the human body reflects the typical or ordinary experience of members

of the public who use the product.

Parts IX, X, XI, XII, and XIII relate to the respondents'

obligation to maintain records, distribute the order to current and

future officers and employees, notify the Commission of changes in

business or corporate structure, and file compliance reports with the

Commission.

The purpose of this analysis is to facilitate the 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.

Donald S. Clark,

Secretary.

[FR Doc. 94-12622 Filed 5-23-94; 8:45 am]

BILLING CODE 6750-01-M