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

FEDERAL TRADE COMMISSION

[Dkt. 9252]

Sonic Technology 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 company and its officers

from representing that any ultrasonic pest control device can eliminate

rodent or flea infestations, and from misrepresenting the results of

any scientific studies regarding their ultrasonic pest control

products.

DATES: Comments must be received on or before May 3, 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:

Matthew Gold or David Newman, 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 Section 3.25(f) of

the Commission's Rules of Practice (16 CFR 3.25(f)), 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

In the matter of SONIC TECHNOLOGY PRODUCTS, INC. a corporation,

and W. LOWELL ROBERTSON, individually and as an officer of said

corporation, and BRIAN PHILLIP JOBE, individually and as an officer

of said corporation. Docket No. 9252.

This agreement, by and between Sonic Technology Products, Inc., a

corporation, and W. Lowell Robertson and Brain Phillip Jobe,

individually and as officers of Sonic Technology Products, Inc., and

counsel for the Federal Trade Commission, is entered into in accordance

with the Commission's Rule governing consent order procedures.

Accordingly, It is hereby agreed:

1. Respondent Sonic Technology Products, Inc., is a corporation

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

of the State of Nevada, with its principal place of business located at

120 Richardson Street, suite C, Grass Valley, California 95945.

Respondents W. Lowell Robertson and Brain Phillip Jobe are officers

of said corporation. Individually or in concert with others, they

formulate, direct, and control the policies, acts, and practices of

said corporation. Their office and place of business is the same as

that of said corporation.

2. Respondents admit all the jurisdictional facts set forth in the

attached draft complaint.

3. 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.

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 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

respondents, in which event it will take such action as it may consider

appropriate, or issue and serve its decision, in disposition of the

proceeding.

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

constitute an admission by the respondents that the law has been

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

alleged in the 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 section 3.25(f) of the

Commission's Rules, the Commission may, without further notice to

respondents, (1) issue 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 decision

containing the agreed-to order to respondents' address as stated in

this agreement shall constitute service. 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. Respondents have read the complaint and order contemplated

hereby. They 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. 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 Sonic Technology Products, Inc., (``Sonic'') a

corporation, and W. Lowell Robertson and Brian Phillip Jobe,

individually and as officers of said corporation, and their successors

and assigns, agents, representatives, and employees, directly or

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

connection with the advertising, marketing, offering for sale, sale, or

distribution of the ``PestChaser,'' the ``Pestrepeller,'' or any other

ultrasonic pest control device, 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:

A. That the device can or will eliminate infestations of rodents;

B. That the device can or will eliminate or reduce infestations of

fleas; or

C. That the device can or will repel fleas.

II

It is further ordered that respondents, their successors and

assigns, and the corporate respondent's officers, and respondents'

representatives, agents 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 ultrasonic pest control device, 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, the existence, contents, validity, results,

conclusions, interpretations or purpose of any test, study or other

scientific data.

III

It is further ordered that respondents, their successors and

assigns, and the corporate respondent's officers, and respondents'

representatives, agents 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 ultrasonic pest control device, in or affecting commerce, as

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

forthwith cease and desist from:

A. Representing, directly or by implication, that the

``PestChaser,'' the Pestrepeller,'' or any other ultrasonic pest

control device will increase or assist the effectiveness of a user's

efforts to eliminate or reduce infestations of rodents or other pests

when the device is used in conjunction with other pest control methods,

such as traps or poisons; or

B. Making, directly or by implication, any representation referring

or relating to the performance or efficacy of any such device;

unless at the time of making such a representation, respondents possess

and rely upon competent and reliable scientific evidence that

substantiates the representation. ``Competent and reliable scientific

evidence'' shall mean, for purposes of this Order, those tests,

analyses, research, studies or other evidence conducted and evaluated

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

generally accepted by others in the profession or science to yield

accurate and reliable results;

Provided, That nothing in Section III of this Order shall prevent

respondents from truthfully representing, by use of the words

``Registered in Canada,'' that the Canadian Department of Agriculture

has registered the PestChaser, Pestrepeller or any other ultrasonic

pest control device, and permitted the sale of such device in Canada.

IV

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

days after the date of service of this order, send to each catalog

company with whom respondents have done business since January 1, 1992,

a copy of this order and a notice that the catalog company shall

immediately cease using or relying upon any of respondent's advertising

or promotional materials containing representations prohibited by this

order.

V

It if further ordered that for three (3) years from the date that

the representation to which they pertain is last disseminated,

respondents shall maintain and upon request make available to the

Federal Trade Commission for inspection and copying;

A. All materials relied upon to substantiate any claim or

representation covered by this Order; and

B. All test reports, studies, or other materials in their

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.

VI

It is further ordered that for three (3) years from the date of

issuance of this Order, respondents shall maintain and upon request

make available to the Federal Trade Commission for inspection and

copying all documents demonstrating or relating to compliance with the

terms of this Order, including but not limited to:

A. All advertisements, promotional materials, documents, or other

materials relating to the offer of sale or sale of any ultrasonic pest

control device; and

B. All consumer complaints and requests for refunds.

VII

It is further ordered that, for three (3) years from the date of

issuance of this Order, the corporate respondent, its successors and

assigns, and the individual respondents, shall cause a copy of this

Order to be distributed to each purchaser of respondents' ultrasonic

pest control devices for resale, to each present and future managerial

employee of respondents, and to each present and future saleperson of

respondents' products, whether they are independent sales agents or

employees of respondents.

VIII

It is further ordered that, for five (5) years from the date of

issuance of this Order, 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.

IX

It is further ordered that, for five (5) years from the date of

issuance of this Order, each individual respondent shall notify the

Commission, by submitting a report, in writing, of any change in his

residence or business address, occupation, place of business, or place

of employment.

X

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

days after 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 Sonic

Technology Products, Inc., a Nevada corporation, and W. Lowell

Robertson and Brian Phillip Jobe, individually and as officers 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 the labeling and advertising of the

PestChaser, a plug-in device that is designed to emit sound in

ultrasonic frequencies, i.e., frequencies inaudible to the human ear.

The Commission's complaint charges that respondents' advertising

contained false and unsubstantiated representations concerning the

PestChaser's alleged ability to affect rodents and fleas. Specifically,

the complaint alleges that respondents falsely claimed that the

PestChaser: (1) Eliminates rodent infestations; and (2) eliminates or

reduces flea infestations, or repels fleas.

The complaint further alleges that respondents falsely represented

that competent and reliable scientific tests have established that the

above efficacy claims are true. The complaint also alleges that

respondents lacked substantive for the claim that the PestChaser, when

used in conjunction with other pest control methods, such as traps and

poisons, will increase the effectiveness of the user's efforts to

eliminate or reduce infestations of rodents or other pests.

The proposed consent order contains provisions designed to remedy

the violations charged and to prevent respondents from engaging in

similar acts and practices in the future.

Part I of the proposed order prohibits respondents from claiming

that their ultrasonic pest control devices can or will: (1) Eliminate

infestations of rodents; (2) eliminate or reduce infestations of fleas;

or (3) repel fleas.

Part II of the proposed order prohibits respondents from

misrepresenting the existence, validity, results, conclusions,

interpretations or purpose of any test, study or other scientific data.

Part III of the proposed order requires respondents to possess

competent and reliable scientific evidence for: (1) any claim that any

ultrasonic pest control device will increase or assist the

effectiveness of a user's efforts to eliminate or reduce infestations

of rodents or other pests when the device is used in conjunction with

other pest control methods; or (2) any representation referring or

relating to the performance or efficacy of any ultrasonic pest control

device. Part III further provides that, notwithstanding this

requirement, respondents may truthfully represent, by use of the words

``Registered in Canada,'' that the Canadian Department of Agriculture

has registered their ultrasonic pest control device, and permitted the

sale of such device in Canada.

The proposed order also requires respondents to maintain materials

relied upon to substantiate claims covered by the order, to notify the

Commission of any changes in corporate structure that might affect

compliance with the order, and to notify the Commission of certain

changes in the business or employment of the named individual

respondents.

The proposed order also requires respondents to distribute copies

of the order to any catalog company with whom respondents have done

business since January 1, 1992, to present and future resellers of

their ultrasonic pest control devices, and to their managerial

employees and salespeople. Respondents must also 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. 94-4966 Filed 3-3-94; 8:45 am]

BILLING CODE 6750-01-M