Beatrice Foods Co

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IN THE MATTER OF BEATRICE FOODS CO., ET AL.

Docket 9112. Interlocutory Order, Feb. 27, 1984 ORDER DENYING EXTENSION OF IN CAMERA TREATMENT In response to the Commission s October 14, 1983 order to show cause for a two-year extension of in camera treatment for certain documents, respondent Tropicana Products, Inc. has withdrawn its motion for such an extension for all but one document, CX 413B. CX 413B contains statistical information on Tropicana shipments of chiled and canned citrus products during the four-week period ending March 26, 1978. It is alleged that this information is not otherwise available and that the public disclosure of it would cause clearly defined, serious injury, " justifying the extension of in camera treatment under the standard for confidentiality articulated in HP. Hood and Sons, Inc. 58 F. C. 1184 (1961) Tropicana asserts that by knowing its total shipments for a one-month period almost six years ago, competitors could extrapolate from generally available A.C. Nielsen data on chain store distribution to determine the extent and strength of Tropic ana s current non-chain distribution to specific geographic markets. It is alleged that non-chain distribution is a "recognized strength of Tropicana s distribution system" and that knowledge of it derived from this information could be utilized by competitors in sales and marketing strategies to Tropicana s competitive detriment. Tropicana Response to Show Cause Order at 5. It is diffcult to evaluate Tropicana s claim that the information in CX 413B is not otherwise available to the competition. We do know that it was submitted to the Florida Canner s Association, some of whose directors were executives of Tropicana s competitors, CX 414 , yet it is unclear whether such individuals ever saw the information in CX 413B or would have been free to share it with their companies ifthey had. Regardless ofthis ambiguity, however, it remains the case that this information is now nearly six years old and, therefore presumably not competitively sensitive unless Tropicana can make a convincing showing that such data would provide significant insight into its strengths and weaknesses. General Foods, Corporation, 95 C. 352, 353-354 (1980).

We are not convinced it would. Accepting Tropicana s premise that its non-chain distribution is generally competitively sensitive information, we fail to see how competitors could use such old, limited data on total shipments in conjunction with Nielsen data to derive accu- Interlocutory Order 103 F. rate information on Tropicana current non-chain shipments. For such analysis to be possible, the total amounts and geographic areas of Tropicana s distribution today would have to be basically unchanged from what they were six years ago. In support ofthis assumption, all that Tropicana contends is that there has been "limited relative growth" in the citrus industry, but even ifthat is true, it does not necessarily follow that Tropicana s volume and pattern of distribution have stayed the same. Absent better proof, we are not convinced that competitors of Tropic ana could use the information in CX 413B in the manner suggested to any effective competitive advantage. Adding to our doubts about Tropicana s showing is its equally unsubstantiated claim that in camera treatment is needed for only two more years because "predicted. . . industry growth wil result in ultimate minimization of the competitive sensitivity of the information. Tropicana Response at 7.

We thus find that Tropicana has not made the convincing showing of competitive injury required in seeking confidential treatment of old documents. In addition to claiming injury, Tropicana argues that there is no "countervailing consideration" in support of disclosing CX 413B to explain the Commission s decision since it was never cited in the opinion. See General Foods Corp., supra 95 F. C. at 355. Before such countervailing considerations can even enter the analysis, however, competitive injury from disclosure must appear to be likely. This showing has not been made.

Therefore it is ordered that the motion for extended in camera treatment for CX 413B is hereby denied. Commissioners Miller and Douglas voted in the negative. 105 Interlocutory Order