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

FEDERAL TRADE COMMISSION

[File No. 932 3357]

Abovo, 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 Massachusetts company and its president

from making false or unsubstantiated performance claims about any

communication aid they offer in the future, and from making

representations concerning the efficacy of their communication devices

in enabling individuals with disabilities to communicate through

facilitated communication, unless the respondents have competent and

reliable scientific evidence to substantiate the representation.

DATES: Comments must be received on or before March 6, 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:

Jeffrey Klurfeld or Kerry O'Brien, San Francisco Regional Office,

Federal Trade Commission, 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 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

Practices (16 CFR 4.9(b)(6)(ii)).

In the Matter of: Abovo, Inc., a corporation, and Susan L.

Lakso, individually and as an officer of said corporation.

Agreement Containing Consent Order to Cease and Desist

The Federal Trade Commission having initiated an investigation of

certain acts and practices of Abovo, Inc., a corporation, and Susan L.

Lakso, individually and as an officer of said corporation (``proposed

respondents''), and it not appearing that proposed respondents are

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 Abovo, Inc., by its duly

authorized officer, and Susan L. Lakso, individually and as an officer

of said corporation, and their attorney, and counsel for the Federal

Trade Commission that:

1. Proposed respondent Abovo, Inc. is a corporation organized,

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

State of Massachusetts, with its office and principal place of business

located at Cabotville Industrial Park, 165 Front Street, 4th Floor, B

Building, in the City of Chicopee, State of Massachusetts.

Proposed respondent Susan Lakso is an officer of said corporation.

She formulates, directs and controls the policies, acts and practices

of said corporation and her address is the same as that of said

corporation.

2. Proposed respondents admit all the jurisdictional facts set

forth in the draft of 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; 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

complaint contemplated thereby, will be placed on the public record for

a period of sixty (60) days and [[Page 465]] 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

of complaint.

6. This agreement contemplates that, if is accepted by the

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

Commission pursuant to the provisions of Section 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 draft of 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 proposed complaint and order

contemplated hereby. 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

Definitions

For the purposes of this Order, the following definitions shall

apply:

A. The term ``Communication Aid'' means any alphabet display chart,

computer, typewriter or other device, which is created or marketed for

use by persons with communication impairments, including the ``Abovo

Personal Communicating Device.''

B. The term ``Facilitated Communication'' means any method or

technique or process that entails an individual providing physical

support to a person with a communication aid.

I

It is ordered that respondents, Abovo, Inc., a corporation, its

successors and assigns, and its officers, and Susan L. Lakso,

individually and as an officer and director 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 communication aid, 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, that such product enable autistic and/or

mentally retarded individuals to communicate through facilitated

communication.

II

It is further ordered that respondents, Abovo, Inc., a corporation,

its successors and assigns, and its officers, and Susan L. Lakso,

individually and as an officer and director 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 communication aid, 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 such product enables individuals with

disabilities to communicate through facilitated communication, 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. 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 respondents, Above, Inc., a corporation,

its successors and assigns, and its officers, and Susan L. Lakso,

individually and as an officer and director 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 communication aid, 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 performance or attributes of any such

product, unless, at the time of making such representation, respondents

possess and rely upon competent and reliable scientific evidence, that

substantiates such representation.

IV

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.

V

It is further ordered that respondents shall notify the Commission

at least thirty (30) days prior to the effective date of any proposed

change in the corporate respondent that may affect compliance

obligations under this Order such as dissolution, assignment, or sale

resulting in the emergence of a successor corporation(s), the creation

or dissolution of subsidiaries, or any other change in the

corporation(s). [[Page 466]]

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

sixty (60) days from the date of service of this Order upon it,

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

representatives, licensees, 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 has any responsibilities with respect to

the subject matter of this Order; and for a period of three (3) 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, licensees, 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 Abovo,

Inc., a Massachusetts corporation, and Susan L. Lakso, 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 the advertising of the ``Abovo Personal

Communicating Device'' (``Above PCD''), a communication aid for

individuals with disabilities. The Commission's complaint charges that

respondents' advertising contained false and unsubstantiated

representations concerning the efficacy of this communication aid in

enabling individuals with communication disabilities to communicate

through facilitated communication. Facilitated communication is a

technique that, among other things, entails an individual providing

physical support to a person with a communication impairment, while

that person types or points to a communication aid, such as the Abovo

PCD.

Specifically, the complaint alleges that respondents falsely

represented that the Abovo PCD enables autistic and mentally retarded

individuals to communicate through facilitated communication. The

complaint also alleges that the respondents lacked substantiation for

its claim that the Abovo PCD enables individuals who are disabled as a

result of apraxia, motor speech disorders, RETT Syndrome, stroke,

tracheotomy, laryngeal cancer, traumatic brain injury, Alzheimer's

disease, Parkinson's disease, multiple sclerosis, muscular dystrophy,

and/or cerebral palsy to communicate through facilitated communication.

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 respondents from

misrepresenting that any communication aid enables autistic or mentally

retarded individuals to communicate through facilitated communication.

As fencing-in relief, Part II of the proposed order provides that,

if respondents represent that a communication aid enables individuals

with disabilities to communicate through facilitated communication, the

representation must be true and respondents must possess competent and

reliable scientific evidence that substantiates the representation. In

addition, Part III of the proposed order prohibits respondents from

representing the performance or attributes of a communication aid

unless they possess and rely upon competent and reliable evidence,

which when appropriate must be competent and reliable scientific

evidence, to substantiate the representation.

The proposed order also requires respondents to maintain materials

relied upon to substantiate claims covered by the order; to provide a

copy of the consent agreement to their employees involved in the

preparation and placement of respondents' advertisements, or in

communication with respondents' customers or prospective customers; to

notify the Commission of any change in the 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.

Benjamin I. Berman,

Acting Secretary.

[FR Doc. 95-91 Filed 1-3-95; 8:45 am]

BILLING CODE 6750-01-M