Conopco, Inc.; Van Den Bergh Foods Company; Analysis to Aid Public Comment

FEDERAL TRADE COMMISSION

[File No. 912-3336]

Conopco, Inc.; Van Den Bergh Foods Company; 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 New York

City-based manufacturer of margins and spreads from making

unsubstantiated or false health or nutrient content claims for any of

the margarine and butter products it markets. In addition, in any

advertisement including a ``no cholesterol'' claim for a margarine or

spread that contains a significant amount of fat, Conopco has agreed to

clearly state the total fat content. The agreement settles Commission

allegations stemming from Conopco's national advertising campaign for

Promise margarine that focused on consumers' heart health concerns.

DATES: Comments must be received on or before January 14, 1997.

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: Anne V. Maher, Federal Trade

Commission, S-4002, 6th and Pennsylvania Ave, NW, Washington, DC 20580.

(202) 326-2987. Rosemary Rosso, Federal Trade Commission, S-4002, 6th

and Pennsylvania Ave, NW, Washington, DC 20580. (202) 326-2174.

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 above-captioned 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. The following Analysis to Aid

Public Comment describes the terms of the consent agreement, and the

allegations in the accompanying complaint. An electronic copy of the

full text of the consent agreement package can be obtained from the FTC

Home page, on the World Wide Web, at ``http://www.ftc.gov/os/actions/

htm.'' A paper copy can be obtained from the FTC Public Reference Room,

Room H-130, Sixth Street and Pennsylvania Avenue, N.W., Washington,

D.C. 20580, either in person or by calling (202) 326-3627. 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)).

Analysis of Proposed Consent Order To Aid Public Comment

The Federal Trade Commission has accepted an agreement to a

proposed consent order from Conopco, Inc. (``Conopco''), a wholly-owned

subsidiary of Unilever United States, Inc., doing business as Van Den

Bergh Foods Company.

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.

The Commission's complaint in this matter charges Conopco with

engaging in deceptive advertising of the ``Promise'' line of margarines

and spreads, which are marketed by Van Den Bergh Foods Company, an

operating division of Conopco. The complaint challenges television and

print advertisements for Promise spread, Promise Extra Light margarine

and Promise Ultra (26%) spread (hereinafter sometimes referred to as

``Promise margarines and spreads''). According to the complaint,

television and print advertisements for Promise margarines and spreads

represented that eating these products would help reduce the risk of

heart disease. According to the complaint, at the time it made the

representation, Conopco neither possessed nor relied upon a reasonable

basis that substantiated such representation.

The complaint also alleges that advertisements for Promise

margarines and spreads represented that these foods are low in total

fat. This representation is alleged to be false and misleading. At the

time the advertisements were disseminated, Promise spread contained 9.5

grams of fat per 14 gram serving and 34 grams of fat per 50 grams,

Promise Extra Light margarine contained 5.6 grams of fat per 14 gram

serving and 20 grams of fat per 50 grams, and Promise Ultra (26%)

contained 3.64 grams of fat per 14 gram serving and 13 grams of fat per

50 grams.

The complaint also alleges that advertisements for Promise spread

represented that Promise spread is low in saturated fat. This

representation is also alleged to be false and misleading. At the time

the advertisements were disseminated, Promise spread contained 1.6

grams of saturated fat per 14 gram serving with 17 percent of calories

derived from saturated fat.

The complaint also alleges that advertisements for Promise spread

and Promise Extra Light margarine represented that Promise spread and

Promise Extra Light margarine have no dietary cholesterol. According to

the complaint, Conopco failed to adequately disclose that Promise

spread and Promise Extra Light margarine contain a significant amount

of total fat. In light of the representation that Promise spread and

Promise Extra Light margarine have no dietary cholesterol, the total

fat content of the products would be material to consumers and the

failure to adequately disclose total fat content is alleged to be

deceptive.

The consent order contains provisions designed to remedy the

violations charged and to prevent Conopco from engaging in similar

deceptive and unfair acts and practices in the future.

Part I of the order prohibits Conopco from misrepresenting that

eating Promise margarines and spreads or any other margarine or spread

will help to reduce the risk of heart disease or that any margarine or

spread has the ability to cause or contribute to any risk factor for a

disease or any health-related condition unless at the time of making

such representation Conopco possesses and relies upon a reasonable

basis consisting of competent and reliable

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scientific evidence that substantiates the representation. Under the

order, any representation relating to the ability of any margarine or

spread to reduce the risk of heart disease or to cause or contribute to

any risk factor for a disease or any health-related condition that is

specifically permitted in labeling by regulations promulgated by the

Food and Drug Administration pursuant to the Nutrition Labeling and

Education Act of 1990 will be deemed to have a reasonable basis.

Part II of the order prohibits Conopco from misrepresenting the

existence or amount of fat, saturated fat, cholesterol or calories of

any margarine or spread. Part II also provides that if any

representation covered by this Part 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.

Part IIIA of the order requires Conopco, in any advertisement or

promotional material for any margarine or spread that contains the

disclosure level of fat as set forth in final regulations concerning

cholesterol content claims as promulgated by the Food and Drug

Administration pursuant to the Nutrition Labeling and Education Act of

1990, that refers, directly or by implication, to the amount of

cholesterol in such food, to disclose clearly and prominently the total

number of grams of fat per serving. Part IIIB of the order requires

that for three years Conopco also disclose, in any advertisement or

promotional material for any margarine or spread sold under the Promise

brand name that contains the aforementioned disclosure level of fat,

the percentage of calories derived from fat or a statement that the

margarine or spread is not a ``low fat'' food.

Part IV provides that the order shall not prohibit representations

specifically permitted in labeling for any margarine or spread by

regulations promulgated by the Food and Drug Administration pursuant to

the Nutrition Labeling and Education Act of 1990.

Part V defines the terms used in the order. Part VI requires

Conopco to maintain copies of all material relating to advertisements

covered by the order and all documents relating to substantiation of

advertising claims covered by the order. Part VII requires Conopco to

notify the Commission of any changes in the corporate structure that

might affect compliance with the order. Part VIII requires Conopco to

distribute copies of the order to certain company officials and

employees and certain other representatives and agents of the company.

Part IX provides that the order will terminate after twenty years under

certain circumstances. Part X requires Conopco to file with the

Commission one or more reports detailing compliance with 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 in any

way their terms.

Donald S. Clark,

Secretary.

[FR Doc. 96-29266 Filed 11-14-96; 8:45 am]

BILLING CODE 6750-01-P