Mrs. Fields Cookies, Inc.; Consent Agreement With Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

[File No. 952-3014]

Mrs. Fields Cookies, Inc.; Consent Agreement With Analysis To Aid

Public Comment

AGENCY: Federal Trade Commission.

ACTION: Consent agreement.

-----------------------------------------------------------------------

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 Salt Lake City, Utah-based corporation from

misrepresenting the amount of fat, saturated fat, cholesterol, or

calories in any bakery food products. The consent agreement settles

allegations that Mrs. Fields touted a cookie line as ``low fat'' in

advertising and promotional materials when the fat content of two

cookies in the line exceeded the amount of fat that qualifies as ``low

fat'' under Food and Drug Administration regulations.

DATES: Comments must be received on or before May 6, 1996.

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

Room 159, 6th Street and Pennsylvania Avenue NW., Washington, D.C.

20580.

FOR FURTHER INFORMATION CONTACT:

Phoebe D. Morse, Boston Regional Office, Federal Trade Commission, 101

Merrimac Street, Suite 810, Boston, Massachusetts 02114-4719, (617)

424-5960.

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: Mrs. Fields Cookies, Inc., a corporation. File

No. 952 3014.

Agreement Containing Consent Order To Cease and Desist

The Federal Trade Commission having initiated an investigation of

certain acts and practices of Mrs. Fields Cookies, Inc., a corporation,

hereinafter sometimes referred to as proposed respondent, and it now

appearing that proposed respondent is willing to enter 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 Mrs. Fields Cookies, Inc., by

its duly authorized officer and attorney, and counsel for the Federal

Trade Commission that:

1. Proposed respondent Mrs. Fields Cookies, Inc. is a corporation

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

of the State of California with its office and principal place of

business located at 462 West Bearcat Drive, Salt Lake City, UT 84115.

2. Proposed respondent admits all the jurisdictional facts set

forth in the attached draft complaint.

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 attached

draft complaint, 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 attached draft complaint, or that the facts

as alleged in the attached draft complaint, other than jurisdictional

facts, are true.

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 Section 2.34 of the

Commission's Rules, the Commission may, without further notice to

proposed respondent: (1) issue its complaint corresponding in form and

substance with the attached draft 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

respondent's address as stated in this agreement shall constitute

service. Proposed respondent waives any rights 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 Mrs. Fields Cookies, 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

[[Page 8940]]

any food in or affecting commerce, as ``food'' and ``commerce'' are

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 fat, saturated fat, cholesterol or calories in

any bakery food product, whether cooked or uncooked. 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 food

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 three (3) 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 possession or control that contradict, qualify, or call

into question such representation, or the basis relied upon for 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, to each manager of its company-owned

and franchised stores, and to each of its officers, agents,

representatives, and employees engaged in the preparation or placement

of advertisements or promotional materials covered by this Order.

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.

VII

This Order will terminate twenty (20) years from the date of its

issuance, or twenty (20) 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 of this Order that terminates in less than twenty

(20) 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 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

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 Mrs. Fields Cookies,

Inc. (``Mrs. Fields'').

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 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 Mrs. Fields in its advertising

for three new cookies it introduced in 1994. The Commission's complaint

charges Mrs. Fields with engaging in unfair or deceptive practices in

connection with the advertising these cookies. According to the

complaint, Mrs. Fields falsely represented that all three of the new

cookies are low fat.

The consent order contains provisions designed to remedy the

violations charged and to prevent Mrs. Fields from engaging in similar

deceptive and unfair acts and practices in the future.

Part I of the order prohibits Mrs. Fields from misrepresenting the

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

any bakery food product, whether cooked or uncooked. Part I also

requires that any representation covered by this Part that conveys a

nutrient content claim defined for labeling by any regulation of the

Food and Drug Administration (``FDA'') must comply with the qualifying

amount set forth in that regulation.

Part II of the order provides that representations that would be

specifically permitted in food labeling, under regulations issued by

the FDA pursuant to the Nutrition Labeling and Education Act of 1990,

are not prohibited by the order.

Part III of the order requires Mrs. Fields to maintain copies of

all materials relied upon in making any representation covered by the

order.

Part IV of the order requires Mrs. Fields to notify the Commission

of any changes in corporate structure that might affect compliance with

the order.

Part V of the order requires Mrs. Fields to distribute copies of

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

representatives of Mrs. Fields.

Part VI of the order requires Mrs. Fields to file with the

Commission one or more reports detailing compliance with the order.

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

order will terminate twenty (20) 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

[[Page 8941]]

the agreement and proposed order, or to modify any of their terms.

Donald S. Clark,

Secretary.

[FR Doc. 96-5226 Filed 3-5-96; 8:45 am]

BILLING CODE 6750-01-M