Frank A. Latronica, Jr., et al.; Proposed Consent Agreement With Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

[File No. 932-3150]

Frank A. Latronica, Jr., 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

require, among other things, the distributor and the manufacturer of

the Duram Emergency Escape Mask to possess competent and reliable

scientific evidence to substantiate claims that their mask will absorb,

filter out, or otherwise protect the user from any

[[Page 29851]] hazardous gas or fumes associated with fires, and for

claims that the mask is appropriate for use in mines.

DATES: Comments must be received on or before August 7, 1995.

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

Room 159, 6th St. and Pa. Ave., N.W., Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT:

Alan E. Krause, Chicago Regional Office, Federal Trade Commission, 55

East Monroe Street, Suite 1437, Chicago, Illinois 60603. (312) 353-

8156.

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

Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Section 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)).

In the Matter of Frank A. Latronica, Jr., individually and doing

business as Life Safety Products, and Duram Rubber Products, a

partnership, Agreement Containing Consent Order to Cease and Desist.

The Federal Trade Commission having initiated an investigation

of certain acts and practices of Frank A. Latronica, Jr.,

individually and doing business as Life Safety Products; and Duram

Rubber Products, a partnership, (hereinafter referred to as

``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 Frank A. Latronica, Jr.,

individually and doing business as Life Safety Products; and Duram

Rubber Products, a partnership, and counsel for the Federal Trade

Commission that:

1. Proposed respondent Frank A. Latronica, Jr., is an individual

doing business as Life Safety Products with his principal office or

place of business at 412 North Pacific Coast Highway, Suite 357,

Laguna Beach, California 92651.

2. Proposed respondent Duram Rubber Products is a registered

partnership of Kibbutz Ramat Hakovesh organized, existing and doing

business under and by virtue of the laws of the country of Israel,

with its principal office or place of business at Kibbutz Ramat

Hakovesh 44930 Israel.

3. Proposed respondents admit all the jurisdictional facts set

forth in the draft of complaint.

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

of the proceeding unless and until it is accepted by the Commssion.

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

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.

6. 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 draft complaint, other than the

jurisdictional facts, are true.

7. 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 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 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.

8. 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

Definitions

For purposes of this Order, the following definitions shall

apply:

(1) ``Duram Emergency Escape Mask'' shall mean the over-the-head

escape hood manufactured by Duram Rubber Products an Israeli

Company.

(2) ``Substantially similar product'' shall mean any mask, hood

or other product that is designed or advertised as offering the user

protection from the hazards associated with fires.

(3) ``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.

I

It is ordered that respondents Frank A. Latronica, Jr.,

individually and doing business as Life Safety Products; and Duram

Rubber Products, a partnership, its successors and assigns, and its

officers; and respondents' agents, representatives, and employees,

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

device, in connection with the labeling, advertising, promotion,

offering for sale, sale, or distribution of the Duram Emergency

Escape Mask, 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, directly or by

implication that:

A. Such product is capable of absorbing, removing, filtering

out, or otherwise protecting the user from any hazardous gas or

fumes associated with fire, unless such representation is true and,

at the time of making such representation, respondents possess and

rely upon competent and reliable scientific evidence that

substantiates the representation; or

B. Such product can protect the user from any hazards associated

with fire, unless such representation is true and, at the time of

making such representation, respondents possess and rely upon

competent and reliable scientific evidence that substantiates the

representation; or

C. Such product is appropriate for use in mines, unless such

representation is true and, at the time of making such

representation, respondents possess and rely upon competent and

reliable evidence that substantiates the representation.

II

It is further ordered that respondents Frank A. Latronica, Jr.,

individually and doing business as Life Safety Products; and Duram

Rubber Products, a partnership, its successors and assigns, and its

officers; and respondents' agents, representatives, and employees,

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

device, shall include, as specified below, the following disclosure

in any advertisement or promotional material for the Duram Emergency

Escape Mask, or any substantially [[Page 29852]] similar product,

that is advertised, offered for sale, or sold by respondents that is

incapable of absorbing, removing, filtering or otherwise providing

significant protection from carbon monoxide, if that advertising or

promotional material expressly or impliedly represents that the

device protects the user from any hazard associated with fire:

Notice: This device does not filter carbon monoxide--a lethal

gas associated with fire.

In any print advertisement or promotional material, the above

disclosure shall be printed in a typeface and color that are clear

and prominent in at least ten-point bold type print, in close

conjunction with the representation. In multipage documents, the

disclosure shall appear on the cover or first page.

In any advertisement disseminated on television broadcast,

cablecast, home video or theatrical release, the above disclosure

shall be displayed in a legible superscript with a simultaneous

voice-over recitation of the disclosure in a manner designed to

ensure clarity and prominence.

In any radio advertisement, the above disclosure shall be spoken

in a manner designed to ensure clarity and prominence.

Nothing contrary to, inconsistent with, or in mitigation of the

above disclosure shall be used in any advertisement in any medium.

III

It is further ordered that respondents Frank A. Latronica, Jr.,

individually and doing business as Life Safety Products; and Duram

Rubber Products, a partnership, its successors and assigns, and its

officers; and respondents' agents, representatives, and employees,

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

device, shall include, as specified below, the following disclosure

on all package labels and package inserts for the Duram Emergency

Escape Mask, or any substantially similar product, advertised,

offered for sale, or sold by respondents that is incapable of

absorbing, removing, filtering or otherwise providing significant

protection from carbon monoxide:

Warning: This device does not filter carbon monoxide--a lethal

gas associated with fire.

The above-required language shall be printed in at least ten-

point bold type print in a typeface and color that are clear and

prominent. Nothing contrary to, inconsistent with, or in mitigation

of the above disclosure shall be used on any such package label or

product insert.

IV

It is further ordered that respondents Frank A. Latronica, Jr.,

individually and doing business as Life Safety Products; and Duram

Rubber Products, a partnership, its successors and assigns, and its

officers; and respondents' agents, representatives, and employees,

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

device, in connection with the labeling, advertising, promotion,

offering for sale, sale, or distribution of any fire protection or

safety related 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 any such product protects or assists in protecting the user

from respiratory hazards associated with fire, explosions, air

pollution, chemical exposure or other environments where normal

breathing is impaired, 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 the representation.

V

It is further ordered that respondents Frank A. Latronica, Jr.,

individually and doing business as Life Safety Products; and Duram

Rubber Products, a partnership, its successors and assigns, and its

officers; and respondents' agents, representatives, and employees,

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

device, in connection with the labeling, advertising, promotion,

offering for sale, sale, or distribution of any fire protection or

safety related 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, the existence, contents, validity, results, conclusions

or interpretations of any test or study.

VI

It is further ordered that respondents shall:

A. Within thirty (30) days from the date of service of this

Order, deliver by first class mail, a dated notification letter, on

Life Safety Products letterhead stationery, in the form set forth in

Appendix A to this Order, to each person, partnership or corporation

who purchased a Duram Emergency Escape Mask from Life Safety

Products. The notification letter shall be delivered by itself in a

format that does not include any additional communication from

respondent.

B. Within sixty (60) days from the date of service of this

Order, deliver by first class mail, a dated notification letter, on

Life Safety Products letterhead stationery, in the form set forth in

Appendix A to this Order, to each person, partnership, or

corporation who purchased a Duram Emergency Escape Mask from any of

the catalog retailers to whom Life Safety Products sold the Duram

Emergency Escape Mask for resale. The notification letter shall be

delivered by itself in a format that does not include any additional

communication from respondent.

VII

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

representations; and

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

other evidence in its possession or control that contradict,

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

relied upon for such representation, including complaints from

consumers.

VIII

It is further ordered that respondents shall:

A. Within thirty (30) days from the effective date of this Order

deliver a copy of this Order to each of their officers, agents,

representatives, and employees who are engaged in the preparation or

placement of advertisements, promotional materials, product labels

or other such sales materials covered by this Order.

B. For a period of ten (10) years from the effective date of

this Order deliver a copy of this Order to each of their future

officers, agents, representatives, and employees who are engaged in

the preparation or placement of advertisements, promotional

materials, product labels or other such sales materials covered by

this Order, within three (3) days after the person assumes such

position.

IX

It is further ordered that the respondent Duram Rubber Products

shall notify the Federal Trade Commission at least thirty (30) days

prior to any proposed change in its partnership structure, including

but not limited to dissolution, assignment or sale resulting in the

emergence of a successor partnership or corporation, the creation or

dissolution of subsidiaries or affiliates, the planned filing of a

bankruptcy petition or any other partnership change, that may affect

compliance obligations arising under this Order.

X

It is further ordered that respondent Frank A. Latronica, Jr.,

doing business as Life Safety Products, shall, for a period of ten

(10) years from the date this Order becomes final, notify the

commission within thirty (30) days of the discontinuance of his

present business or employment and of each affiliation with a new

business or employment. Each notice of affiliation with any new

business or employment shall include his new business address and

telephone number, current home address, and a statement describing

the nature of the business or employment and the duties and

responsibilities. The expiration of the notice provision of this

Part X. shall not affect any other obligation arising under this

Order.

XI

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

days after service of this Order upon it, 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.

Appendix A

Dear Purchaser of a Duram Emergency Escape Mask: Please note

this important safety information:

The Duram Emergency Escape Mask you purchased does not filter carbon

monoxide--a lethal gas associated with fire. This mask will not

protect you from the effects of carbon monoxide gas.

This means that if you are wearing the Duram Emergency Escape

Mask during a fire, exit immediately. You should know that carbon

monoxide is colorless and odorless.

Our company, Life Safety Products, is sending all Duram

Emergency Escape Mask (``Duram Mask'') purchasers this alert as a

[[Page 29853]] result of a consent order with the Federal Trade

Commission. According to the Federal Trade Commission,

advertisements for the Duram Mask claimed that the mask would

protect you from all significant fire hazards for up to 20 minutes.

These hazards included toxic smoke, poisonous fumes, and lethal

gases.

The advertisements for the Duram Mask did not make it clear that

the mask does not filter carbon monoxide--a lethal gas associated

with fires.

We have now agreed not to make any claims about the mask's

ability to protect you from fire hazards, unless we have reliable

scientific evidence to back up these statements.

We also have learned that these masks are not appropriate for

use in U.S. mines.

While the Duram Mask will not protect you from carbon monoxide

gas, it will protect you from other potentially lethal gases

associated with fire. These gases include hydrogen chloride,

hydrogen cyanide, nitrogen dioxide, and sulfur dioxide.

Life Safety Products

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

Frank A. Latronica, Jr., doing business as Life Safety Products, and

Duram Rubber Products.

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 claims made by the respondents in their

advertising and other promotional materials that the Duram Emergency

Escape Mask will absorb or filter out all significant toxic smoke

and poisonous fumes and lethal gases associated with fires; will

protect the user from all significant hazards associated with toxic

smoke, poisonous fumes and lethal gases in fires for up to twenty

minutes; and is appropriate for use in mines. The Commission's

complaint charges that respondents' claims are false and misleading

because the Duram Emergency Escape Mask will not absorb or filter

out all significant toxic smoke and poisonous fumes and lethal gases

associated with fires because it does not absorb or filter out

carbon monoxide, a lethal gas associated with fires; will not

protect the user from all significant hazards associated with toxic

smoke, poisonous fumes and lethal gases in fires for up to twenty

minutes because it does not absorb or filter out carbon monoxide, a

lethal gas associated with fires; and it is not appropriate for use

in mines because it does not meet the standards developed by the

National Institute for Occupational Safety and Health and the United

States Bureau of Mines for Respiratory Protective Devices, as set

forth in 30 CFR part 11.

The Commission's complaint also charges that the respondents

falsely represented that they possessed and relied upon a reasonable

basis that substantiated the above claims. The Commission's

complaint alleges that this representation is false and misleading

because at the time they made these three representations

respondents did not possess and rely upon a reasonable basis that

substantiated these claims.

The Commission's complaint also alleges that respondents'

failure to disclose to consumers that the Duram Emergency Escape

Mask does not absorb or filter out carbon monoxide, is a deceptive

practice.

Finally, the Commission's complaint charges that in their

advertising and other promotional materials respondents represented,

directly or by implication, that scientific tests prove that the

Duram Emergency Escape Mask filters 94% of the smoke in an

environment filled with smoke. The Commission's complaint alleges

that this representation is false and misleading because scientific

tests do not prove that the Duram Emergency Escape Mask filters 94%

of the smoke in an environment filled with smoke.

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 prohibits the respondents from

representing, directly or by implication in its advertising or

labeling for the Duram Emergency Escape Mask, or any substantially

similar product, that such product is capable of absorbing,

removing, filtering out, or otherwise protecting the user from any

hazardous gas or fumes associated with fire and such product can

protect the user from any hazards associated with fire unless such

representation are true, and respondents possess and rely upon

competent and reliable scientific evidence that substantiates them.

Part I of the proposed order also prohibits the respondents from

representing, directly or by implication in its advertising or

labeling for the Duram Emergency Escape Mask, or any substantially

similar product, that such product is appropriate for use in mines,

unless such representations are true, and respondents possess and

rely upon competent and reliable evidence that substantiates them.

Part II of the proposed order requires respondents to include a

disclosure in any advertisement or promotional material for the

Duram Emergency Escape Mask or any substantially similar product

alerts consumers that the mask is incapable of absorbing, removing,

filtering or otherwise providing significant protection from carbon

monoxide, if the advertisement or promotional material expressly or

impliedly represents that the device protects the user from any

hazard associated with fire. The proposed order also specifies the

size and placement of such a disclosure for print advertisements and

the nature and manner of such a disclosure for audio and visual

advertisements.

Part III of the proposed order requires respondents to include a

disclosure on all package labels and package inserts for the Duram

Emergency Escape Mask or any substantially similar product that

alerts consumers that the mask does not filter carbon monoxide, a

lethal gas associated with fire. The proposed order also specifies

the size of such a disclosure and that it must be in a typeface and

color that are clear and prominent.

Part IV of the proposed order prohibits respondents from

representing, directly or by implication, that any fire protection

or safety related product protects or assists in protecting the user

from respiratory hazards associated with fire, explosions, air

pollution, chemical exposure or other environments where normal

breathing is impaired, 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 the representation.

Part V of the proposed order prohibits respondents from

misrepresenting, in any manner, directly or by implication, for any

fire protection or safety related product, the existence, contents,

validity, results, conclusions or interpretations of any test or

study.

Part VI of the proposed order requires respondents to mail to

each person who has purchased the Duram Emergency Escape Mask from

Life Safety Products, or from any catalog retailer to whom Life

Safety Products has sold the Duram Emergency Escape Mask for resale,

a notification letter informing the consumer that the Duram

Emergency Escape Mask they have purchased does not filter carbon

monoxide.

The remaining parts of the proposed consent order require the

respondents to maintain materials relied upon in disseminating any

representation covered by the order, to distribute copies of the

order to certain company officials and employees, to notify the

Commission of any changes in the corporate structure of Duram Rubber

Products or the employment status of Mr. Frank A. Latronica, Jr.,

that might affect compliance with the order, and that each

respondent file one or more compliance reports.

The purpose of this analysis is to facilitate public comment on

the proposed consent order. It is not intended to constitute an

official interpretation of the agreement and proposed order or to

modify their terms in any way.

Donald S. Clark,

Secretary.

[FR Doc. 95-13793 Filed 6-5-95; 8:45 am]

BILLING CODE 6750-01-M