RBR Productions, Inc.; Richard Rosenberg; Proposed Consent Agreement With Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

[File No. 942-3332]

RBR Productions, Inc.; Richard Rosenberg; 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 or deceptive acts or practices and unfair methods of

competition, this consent agreement, accepted subject to final

Commission approval, would prohibit, among other things, the

Ridgefield, New Jersey-based beauty salon products supplier from making

specific misrepresentations about the safety of its disinfectant

products and would require the firm to have evidence to back certain

other human safety and environmental benefit claims. The consent

agreement settles allegations stemming from advertising and promotional

materials for RBR's disinfectants, ``Let's Dance'' and ``Let's Touch,''

touted as non-toxic or non-corrosive to skin and eyes, and for its

``Let's Go'' drying spray.

DATES: Comments must be received on or before October 15, 1996.

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: Lee Peeler, Federal Trade Commission,

6th and Pennsylvania Avenue, NW, S-4002, Washington, DC 20850. (202)

326-3090. Janet Evans, Federal Trade Commission, 6th and Pennsylvania

Avenue, NW, S-4002, Washington, DC 20850. (202) 326-2125.

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 RBR Productions, Inc., a corporation, and

Richard Rosenberg, individually and as an officer and director of said

corporation, hereinafter sometimes 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 use

of the acts and practices being investigated,

It is hereby agreed by and between RBR Productions, Inc., by its

duly authorized officer, and Richard Rosenberg, individually and as an

officer and director of said corporation, and counsel for the Federal

Trade Commission that:

1. Proposed respondent RBR Productions, Inc. is a corporation

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

of the state of New Jersey, with its office and principal place of

business located at 1010 Hoyt Avenue, Ridgefield, New Jersey 07657.

From time to time, RBR Productions, Inc. does business under the name

of Isabel Cristina Beauty Care Products.

Proposed respondent Richard Rosenberg is an officer and director of

RBR Productions, Inc. He formulates, directs, and controls the

policies, acts, and practices of said corporation and his office and

principal place of business 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;

(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) Any claim 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, 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 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 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

complaint and decision containing the agreed-to order to proposed

respondents' address as stated in this agreement shall constitute

[[Page 42617]]

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. 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. 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:

1. ``Competent and reliable scientific evidence'' shall mean tests,

analyses, research, studies, or other evidence based upon 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;

2. ``Volatile organic compound'' (``VOC'') shall mean any compound

of carbon which participates in atmospheric photochemical reactions as

defined by the U.S. Environmental Protection Agency at 40 C.F.R.

Sec. 51.100(s), and as subsequently amended. When the final rule was

promulgated, 57 Fed. Reg. 3941 (February 3, 1992), the EPA definition

excluded carbon monoxide, carbon dioxide, carbonic acid, metallic

carbides or carbonates, ammonium carbonate and certain listed compounds

that EPA has determined are of negligible photochemical reactivity.

I

It is ordered that respondents, RBR Productions, Inc., a

corporation, its successors and assigns, and its officers, and Richard

Rosenberg, individually and as an officer and director of said

corporation, and respondents' agents, representatives, and employees,

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

or other device, in connection with the manufacturing, labeling,

advertising, promotion, offering for sale, sale, or distribution of

Let's Dance and Let's Touch disinfectants, 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:

A. Let's Dance concentrate is non-corrosive to skin or eyes, non-

toxic, or does not pose a risk of adverse health effects;

B. Let's Touch concentrate is non-toxic or does not pose a risk of

adverse health effects; or

C. Let's Dance and Let's Touch use dilutions are classified as non-

toxic under the Federal Hazardous Substances Act regulations.

II

It is further ordered that respondents, RBR Productions, Inc., a

corporation, its successors and assigns, and its officers, and Richard

Rosenberg, individually and as an officer and director of said

corporation, and respondents' agents, representatives, and employees,

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

or other device:

A. In connection with the manufacturing, labeling, advertising,

promotion, offering for sale, sale, or distribution of Let's Dance and

Let's Touch disinfectants, 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:

1. Let's Dance or Let's Touch use dilutions are non-toxic or do not

pose a risk of adverse health effects;

2. Let's Dance or Let's Touch concentrates or use dilutions are

less toxic than quaternary ammonium compound disinfectants or any other

disinfectant or product;

3. Let's Dance is biodegradable;

4. Let's Dance is safe for the environment after ordinary use; and

B. In connection with the manufacturing, labeling, advertising,

promotion, offering for sale, sale, or distribution of Let's Go spray

or any other product containing any volatile organic compound, through

the use of such terms as ``environmental formula,'' ``environmental

formula, freon free, ozone friendly,'' ``environmental formula, will

not harm the ozone, contains no freon, chlorofluorocarbons, methylene

chloride, or 1,1,1-trichloroethane,'' or any other term or expression,

that any such product will not harm the environment; and

C. In connection with the manufacturing, labeling, advertising,

promotion, offering for sale, sale, or distribution of any disinfectant

or aerosol 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 such

product will offer any absolute or comparative health, safety, or

environmental benefit;

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

and rely upon competent and reliable evidence that substantiates the

representation, which when appropriate must be competent and reliable

scientific evidence.

III

A. It is further ordered that respondents, RBR Productions, Inc., a

corporation, its successors and assigns, and its officers, and Richard

Rosenberg, individually and as an officer and director of said

corporation, and respondents' agents, representatives, and employees,

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

or other device, in connection with the manufacturing, labeling,

advertising, promotion, offering for sale, sale, or distribution of any

product or package, 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 extent to which:

(1) any such product or package is capable of being recycled; or,

(2) recycling collection programs for such product or package are

available.

B. Provided, however, respondents will not be in violation of Part

III.A(2) of this Order, in connection with the advertising, labeling,

offering for sale, sale or distribution of any aluminum aerosol can, if

it truthfully represents that such package is recyclable, provided

that:

(1) respondent discloses clearly, prominently, and in close

proximity to such representation:

(a) that such packaging is recyclable in the few communities with

recycling collection programs for aluminum aerosol cans; or

(b) the approximate number of U.S. communities with recycling

collection programs for such aluminum aerosol cans; or

(c) the approximate percentage of U.S. communities or the U.S.

population to which recycling collection programs for such aluminum

aerosol cans are available.

For the purposes of this Order, a disclosure elsewhere on the

product package shall be deemed to be ``in close proximity'' to such

representation if there is a clear and conspicuous cross-reference to

the disclosure. The use of an asterisk or other symbol shall not

constitute a clear and conspicuous

[[Page 42618]]

cross-reference. A cross-reference shall be deemed clear and

conspicuous if it is of sufficient prominence to be readily noticeable

and readable by the prospective purchaser when examining the part of

the package on which the representation appears.

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 or assigns, shall maintain and upon

request make available to the Federal Trade Commission or its staff 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 and complaints

or inquiries from governmental organizations.

V

It is further ordered that respondent RBR Productions, Inc. shall

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 and placement of advertisements, promotional

materials, product labels or other such sales materials covered by this

order.

VI

It is further ordered that respondent RBR Productions, Inc., its

successors and assigns, shall notify the Commission at least thirty

(30) days prior to any proposed change in the corporation such as a

dissolution, assignment, or sale resulting in the emergence of a

successor corporation, the creation or dissolution of subsidiaries, or

any other change in the corporation which may affect compliance

obligations under this Order.

VII

It is further ordered that respondent Richard Rosenberg shall, for

a period of five (5) years from the date of entry of this Order, notify

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

present business or employment and of his affiliation with any new

business or employment. Each notice of affiliation with any new

business or employment shall include respondent's new business address

and telephone number, and a statement describing the nature of the

business or employment and his duties and responsibilities.

VIII

It is further ordered that 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.

IX

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 RBR

Productions, Inc., (``RBR'') a New Jersey corporation, and Richard

Rosenberg, an officer of RBR.

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.

The Commission's complaint in this matter concerns representations

for the following RBR products designed for use in beauty salons: Let's

Dance, a concentrated tuberculocidal disinfectant containing o-

phenylphenol, paratertiary amylphenol and phosphoric acid; and Let's

Touch, a concentrated tuberculocidal disinfectant product containing o-

phenylphenol. The complaint charges that respondents' advertising

represented Let's Dance concentrate is non-corrosive to skin and eyes,

non-toxic, and does not pose a risk of adverse health effects; that

Let's Touch concentrate is non-toxic and does not pose a risk of

adverse health effects; and that Let's Dance and Let's Touch, when

diluted for use, are classified as non-toxic under the Federal

Hazardous Substances Act regulations. The complaint alleges that these

claims are false and unsubstantiated. The complaint also alleges that

respondents' advertising represented without adequate substantiation

that Let's Dance and Let's Touch, when diluted for use, are non-toxic

and do not pose a risk of adverse health effects; that Let's Dance and

Let's Touch are three to five times less toxic than quaternary aluminum

compound disinfectants; that Let's Dance is safe for the environment

after ordinary use; and that Let's Dance will completely break down and

return to nature--i.e., decompose into elements found in nature--within

a reasonably short period of time after customary disposal.

Additional charges in the Commission's complaint concern Let's Go,

a nail glue drying spray containing volatile organic chemicals and

packaged in an aluminum aerosol can. The complaint alleges that

respondents' advertising represented that Let's Go's aluminum aerosol

can is recyclable. The complaint charges that this claim is false and

unsubstantiated because, while the Let's Go aluminum aerosol can is

capable of being recycled, only a few collection facilities accept

aluminum aerosol cans for recycling. Finally, the complaint alleges

that respondents' advertising represented, without adequate

substantiation, that Let's Go spray does not contain any ingredients

that harm or damage the environment.

The proposed consent order contains provisions designed to remedy

the violations charged and to prevent the respondents from engaging in

similar acts in the future. Part I of the proposed order would prohibit

respondents from misrepresenting that Let's Dance

[[Page 42619]]

concentrate is non-corrosive to skin or eyes, non-toxic, or does not

pose a risk of adverse health effects; that Let's Touch concentrate is

non-toxic or does not pose a risk of adverse health effects; or that

Let's Dance and Let's Touch use dilutions are classified as non-toxic

under the Federal Hazardous Substances Act regulations.

Part II.A of the proposed order would require competent and

reliable evidence, which when appropriate must be competent and

reliable scientific evidence, for any representation that Let's Dance

or Let's Touch use dilutions are non-toxic or do not pose a risk of

adverse health effects; that Let's Dance or Let's Touch concentrates or

use dilutions are less toxic than quaternary ammonium compound

disinfectants or any other disinfectant or product; that Let's Dance is

biodegradable; or, that Let's Dance is safe for the environment after

ordinary use. Part II.B of the proposed order would require competent

and reliable evidence, which when appropriate must be competent and

reliable scientific evidence, for any representation, through the use

of such terms as ``environmental formula,'' ``environmental formula,

freon free, ozone friendly,'' ``environmental formula, will not harm

the ozone, contains no freon, chlorofluorocarbons, methylene chloride,

or 1,1,1-trichloroethane,'' or any other term of expression, that Let's

Go spray or any other product containing any volatile organic compound

will not harm the environment. Part II.C of the proposed order would

require competent and reliable evidence, which when appropriate must be

competent and reliable scientific evidence, for a representation that

any disinfectant or aerosol product will offer any absolute or

comparative health, safety, or environmental benefit.

Part III.A of the proposed order would prohibit misrepresentations

of the extent to which any product or package is capable of being

recycled; or the extent to which recycling collection programs for such

product or package are available. Part III.B of the order gives

examples of representations that would not violate part III.A.

Parts IV through IX are standard provisions requiring retention of

certain records, distribution of the order to certain persons,

notification to the Commission of changes in corporate structure or of

employment of the individual respondent, termination of the order and

filing of compliance reports.

The purpose of this analysis is to facilitate public comment on the

proposed order, and it is not 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. 96-20919 Filed 8-15-96; 8:45 am]

BILLING CODE 6750-01-M