Haagen-Dazs Company, Inc.; Proposed Consent Agreement With Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

[File No. 942 3028]

Haagen-Dazs Company, Inc.; 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 ice cream and frozen

yogurt corporation from misrepresenting the existence or amount of fat,

saturated fat, cholesterol, or calorie content of any of its frozen

food products in the future.

DATES: Comments must be received on or before February 10, 1995.

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:

Anne Maher or Michelle Rusk, FTC/S-4002, Washington, DC 20580. (202)

326-2987 or 326-3148.

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)).

Agreement Containing Consent Order To Cease and Desist

The Federal Trade Commission having initiated an investigation of

certain acts and practices of Haagen-Dazs Company, Inc., a corporation,

hereinafter sometimes referred to as proposed respondent, and it now

appearing that proposed respondent is willing to enter into an

agreement containing an order to cease and desist from the use of the

acts and practices being investigated,

It Is Hereby Agreed by and between Haagen-Dazs Company, Inc., by

its duly authorized officer and attorney, and counsel for the Federal

Trade Commission that:

1. Proposed respondent Haagen-Dazs Company, Inc. is a corporation

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

of the State of New Jersey with its principal office and place of

business located at Glenpointe Centre East, Teaneck, NJ 07666-6782.

2. Proposed respondent admits all the jurisdictional facts set

forth in the draft complaint.

3. Proposed respondent waives:

(a) Any 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 a 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 complaint contemplated thereby, 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

respondent, 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 respondent that the law has been

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

alleged in the draft complaint, other than jurisdictional facts, are

true.

6. The 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

respondent: (1) Issue its complaint corresponding in form and substance

with the draft complaint 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 the U.S. Postal Service of the complaint and

decision containing the agreed-to order to proposed respondent's

address as stated in this agreement shall constitute service. Proposed

respondent waives any rights it 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 respondent has read the proposed complaint and order

contemplated hereby. Proposed respondent understands that once the

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

compliance reports showing that it has fully complied with the order.

Proposed respondent further understands that it 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 respondent Haagen-Dazs Company, Inc., a

corporation, its successors and assigns, and its officers, agents,

representatives and employees, directly or through any corporation,

subsidiary, division or other device, in connection with the

manufacturing, labeling, advertising, promotion, offering for sale, or

distribution of any frozen food product in or affecting commerce, as

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

forthwith cease and desist from misrepresenting, in any manner,

directly or by implication, through numerical or descriptive terms or

any other means, the existence or amount of fat, saturated fat,

cholesterol or calories in any such product. If any representation

covered by this Part either directly or by implication conveys any

nutrient content defined (for purpose of labeling) by any regulation

promulgated by the Food and Drug Administration, compliance with this

part shall be governed by the qualifying amount for such defined claim

as set forth in that regulation.

II

Nothing in this Order shall prohibit respondent from making any

representation that is specifically permitted in labeling for any

frozen food product by regulations promulgated by the Food and Drug

Administration pursuant to the Nutrition Labeling and Education Act of

1960.

III

It is further ordered that for three (3) years after the last date

of dissemination of any representation covered by this Order,

respondent, or its successors and assigns, shall maintain and upon

request make available to the Federal Trade Commission for inspection

and copying copies of:

1. All materials that were relied upon in disseminating such

representation; and

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

evidence in its possession of control that contradict, qualify, or call

into question such representation, including complaints from consumers.

IV

It is further ordered that respondent shall notify the Commission

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

respondent such as dissolution, assignment or sale resulting in the

emergence of a successor corporation, the creation or dissolution of

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

compliance obligations arising out of this Order.

V

It is further ordered that respondent shall, within thirty (30)

days after service of this Order, distribute a copy of this Order to

each of its operating divisions and to each of its officers, agents,

representatives, or employees engaged in the preparation or placement

of advertisements or other materials covered by this Order.

VI

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

after service of this Order, 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 it has 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 Haagen-Dazs Company, Inc. (``Haagen-

Dazs'').

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 or make final the agreement's proposed

order.

This matter concerns claims made by Haagen-Dazs in its advertising

for frozen yogurt products.

The Commission's complaint in this matter charges Haagen-Dazs with

engaging in unfair or deceptive practices in connection with its

advertising of frozen yogurt products. According to the complaint

Haagen-Dazs falsely represented that its frozen yogurt is 98 percent

fat free and low fat.

The complaint also alleges that Haagen-Dazs falsely represented

that its frozen yogurt bars contain one gram of fat per serving and are

low fat.

Finally, the complaint alleges that Haagen-Dazs falsely represented

that its frozen yogurt bars contain 100 calories per serving.

The consent order contains provisions designed to remedy the

violations charged and to prevent Haagen-Dazs from engaging in similar

deceptive and unfair acts and practices in the future.

Part I of the order prohibits Haagen-Dazs from misrepresenting the

existence or amount of fat, saturated fat, cholesterol or calories in

any frozen food product. Part I also requires that any representation

covered by this part that conveys a nutrient content claim defined for

labeling by any regulation of the Food and Drug Administration

(``FDA''), must comply with the qualifying amount set forth in that

regulation.

Part II of the order provides that representations that would be

specifically permitted in food labeling, under regulations issued by

FDA pursuant to the Nutrition Labeling and Education Act of 1990, are

not prohibited by the order.

Part III of the order requires Haagen-Dazs to maintain copies of

all materials relied upon in making any representation covered by the

order.

Part IV of the order requires Haagen-Dazs to notify the Commission

of any changes in corporate structure that might affect compliance with

the order.

Part V of the order requires Haagen-Dazs to distribute copies of

the order to its operating divisions and to various officers, agents

and representatives of Haagen-Dazs.

Part VI of the order requires Haagen-Dazs to file with the

Commission one or more reports detailing compliance with the order.

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 any of

their terms.

Donald S. Clark,

Secretary.

[FR Doc. 94-30319 Filed 12-8-94; 8:45 am]

BILLING CODE 6750-01-M