Gerber Products Company; Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

[File No. 962-3175]

Gerber Products 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 baby food

company from representing the extent to which doctors or other health

[[Page 13620]]

professionals recommend baby and toddler foods or from representing any

recommendation or endorsement of these products unless it has competent

and reliable evidence that substantiates the claim. Gerber also would

be prohibited from misrepresenting any survey or research. The

complaint accompanying the consent agreement alleges that Gerber

claimed that four out of five pediatricians recommend Gerber baby food,

when in fact, the study on which Gerber relied showed that only 12

percent of the pediatricians surveyed recommended Gerber.

DATES: Comments must be received on or before May 20, 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 Maher, Federal Trade Commission,

S-4002, 6th St. and Pa. Ave., N.W., Washington, D.C. 20580. (202) 326-

2987. Rosemary Rosso, Federal Trade Commission, S-4002, 6th St. and Pa.

Ave., NW., Washington, D.C. 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

Commission Actions section of the FTC Home Page (for March 12, 1997),

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 Gerber Products Company (``Gerber'').

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 Gerber with

engaging in deceptive practices in connection with the advertising of

Gerber baby and toddler foods. The television, radio and print

advertisements at issue expressly represented that ``4 out of 5

pediatricians who recommend baby food recommend Gerber.'' According to

the complaint, the advertisements falsely represented that competent

and reliable studies or surveys supported that claim. The complaint

explains that, in the survey relied upon by Gerber, 562 of the surveyed

doctors responded to the questions concerning baby food. Of these 562

pediatricians, 408 responded that they recommend baby food to their

patients at least once per week. Of the 408 pediatricians who recommend

baby food, only 76 recommend specific brands, and 67 of those

recommended Gerber. Thus, only 67 of the 408 pediatricians who

recommend baby food, or approximately 16 percent, recommend Gerber to

their patients.

The complaint also alleges that the advertising at issue made an

implied claim that approximately 4 out of 5 pediatricians recommend

Gerber. Because this claim is broader than the claim alleged above, the

base is 562, the total number of pediatricians surveyed who answered

the relevant questions. Of these 562 pediatricians, 67, or

approximately 12 percent, recommended Gerber. Therefore, according to

the complaint, this claim is unsubstantiated.

The proposed consent order contains provisions designed to remedy

the violations charged and to prevent Gerber from engaging in similar

acts and practices in the future.

Part I of the order requires Gerber not to make any representation

about the extent to which doctors or other health, nutrition, child

care, or medical professionals recommend baby or toddler food, or about

the recommendation, approval, or endorsement of such products by any

health, nutrition, child care, or medical professional, profession,

group or other such entity, unless it possesses competent and reliable

evidence, which when appropriate must be competent and reliable

scientific evidence, that substantiates the representation.

Part II prohibits Gerber, in connection with the manufacturing,

labeling, advertising, promotion, offering for sale, sale or

distribution of any baby or toddler food, from misrepresenting the

existence, contents, validity, results, conclusion or interpretations

of any survey, test, study, or research. The order does not prohibit

Gerber from making truthful, non-misleading statements about survey

results.

Part III provides that representations that would be specifically

permitted in food labeling, under regulations issued by the Food and

Drug Administration pursuant to the Nutrition Labeling and Education

Act of 1990, or by nutrition labeling regulations promulgated by the

Department of Agriculture pursuant to the Federal Meat Inspection Act

or the Poultry Products Inspection Act, are not prohibited by the

order.

Part IV requires Gerber to maintain copies of certain materials

relating to advertisements covered by the order and documents relating

to substantiation of advertisements covered by the order. Part V

requires Gerber to distribute copies of the order to certain current

and future officers and employees of the company. Part VI requires

Gerber to notify the Commission of any changes in the corporate

structure that might affect compliance with the order. Part VII

requires Gerber to file with the Commission one or more reports

detailing compliance with the order. Part VIII provides that the order

will terminate after 20 years under certain circumstances.

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. 97-7262 Filed 3-20-97; 8:45 am]

BILLING CODE 6750-01-M