Mama Tish's Italian Specialities, Inc.; Consent Agreement with Analysis to Aid Public Comment

FEDERAL TRADE COMMISSION

[File No. 942-3344]

Mama Tish's Italian Specialities, Inc.; Consent Agreement with

Analysis to Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Comment 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 the Chicago-based flavored ice cup dessert manufacturer from

misrepresenting the amount of calories or other nutrients in any of

their frozen dessert products in the future. The consent agreement

settles allegations stemming from nutritional claims made

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in advertisements for Mama Tish's line of ice cups.

DATES: Comments must be received on or before March 4, 1996.

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

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

FOR FURTHER INFORMATION CONTACT:

C. Steven Baker, Chicago Regional Office, Federal Trade Commission, 55

East Monroe Street, Suite 1437, Chicago, IL 60603, (312) 353-8156,

Barbara Di Giulio, Chicago Regional Office, Federal Trade Commission,

55 East Monroe Street, Suite 1437, Chicago, IL 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)).

Agreement Containing Consent Order to Cease and Desist

The Federal Trade Commission having initiated an investigation of

certain acts and practices of Mama Tish's Italian Specialties, Inc., a

corporation, and it now appearing that Mama Tish's Italian Specialties,

Inc., hereinafter sometimes referred to as 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 that by and between Mama Tish's Italian

Specialities, Inc., by its duly authorized officer and its attorneys,

and counsel for the Federal Trade Commission that:

1. Proposed respondent Mama Tish's Italian Specialties, Inc. is an

Illinois corporation, with its office and principal place of business

located at 4800 Central Avenue, Chicago, Illinois 60638.

2. Proposed respondent admits all the jurisdictional facts set

forth in the draft of complaint here attached.

3. Proposed respondent waives:

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 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 here attached, or that

the facts as alleged in the draft of 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 Section 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 the 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 respondent waives any right 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. It 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 Mama Tish's Italian Specialties,

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,

sale, or distribution of any frozen dessert 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 calories or any other

nutrient or ingredient in any such product. If any representation

covered by this part either directly or by implication conveys any

nutrient content claim defined (for purposes 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

product by regulations promulgated by the Food and Drug Administration

pursuant to the Nutrition Labeling and Education Act of 1990.

III

It is further ordered that for five (5) 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:

A. All materials that were relied upon in disseminating such

representation; and

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

evidence in its

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possession or 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, employees, and licensees engaged in the preparation or

placement of advertisements or other materials covered by this Order.

VI

It is further ordered that respondent, or its successors and

assigns, shall, for three (3) years after the date of the last

dissemination of the representation to which they pertain, maintain and

upon request make available to the Federal Trade Commission for

inspection and copying all advertisements containing any representation

covered by this Order.

VII

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.

VIII

This order will terminate twenty years from the date of its

issuance, or twenty years from the most recent date that the United

States or the Federal Trade Commission files a complaint (with or

without an accompanying consent decree) in federal court alleging any

violation of the order, whichever comes later; provided, however, that

the filing of such a complaint will not affect the duration of:

A. Any paragraph in this order that terminates in less than twenty

years;

B. This order's application to any respondent that is not named as

a defendant in such complaint; and

C. This order if such complaint is filed after the order has

terminated pursuant to this paragraph.

Provided further, that if such complaint is dismissed or a federal

court rules that the respondent did not violate any provision of the

order, and the dismissal or ruling is either not appealed or upheld on

appeal, then the order will terminate according to this paragraph as

though the complaint was never filed, except that the order will not

terminate between the date such complaint is filed and the later of the

deadline for appealing such dismissal or ruling and the date such

dismissal or ruling is upheld on appeal.

Benjamin I. Berman,

Acting Secretary.

Analysis of Proposed Consent Order to Aid Public Comment

The Federal Trade Commission has accepted an agreement to a

proposed consent order from Mama Tish's Italian Specialities, Inc.

(Mama Tish's).

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 Mama Tish's in its advertising

for its ice cups.

The Commission's complaint in this matter charges Mama Tish's with

engaging in unfair or deceptive practices in connection with its

advertising of its ice cups. According to the complaint Mama Tish's

falsely represented that its ice cups are low in calories.

The consent order contains provisions designed to remedy the

violations charged and to prevent Mama Tish's from engaging in similar

deceptive and unfair acts and practices in the future.

Part I of the order prohibits Mama Tish's from misrepresenting the

existence or amount of calories or any other nutrient or ingredient in

any frozen dessert product. This part also requires any representation

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

any regulation promulgated by the FDA pursuant to the Nutrient Labeling

and Education Act of 1990 to meet the qualifying amount for that claim

as set forth in that definition.

Part II of the order provides that representations that would be

specifically permitted in food labeling, under regulations issued by

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

not prohibited by the order.

Part III of the order requires Mama Tish's to maintain copies of

all materials relied upon in making any representation covered by the

order.

Part IV of the order requires Mama Tish's to notify the Commission

of any changes in corporate structure that might affect compliance with

the order.

Part V of the order requires Mama Tish's to distribute copies of

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

and representatives of Mama Tish's.

Part VI of the order requires Mama Tish's to maintain copies of all

advertisements containing representations covered by the order.

Part VII of the order requires Mama Tish's to file with the

Commission one or more reports detailing compliance with the order.

Part VIII of the order is a ``sunset'' provision, dictating that

the order will terminate twenty years from the date it is issued or

twenty years after a complaint is filed in federal court, by either the

United States or the FTC, alleging any violation of 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.

[FR Doc. 96-00072 Filed 1-2-96; 8:45 am]

BILLING CODE 6750-01-M