Gerber Products Company

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IN THE MA TIER OF GERBERPRODUCTSCO~ANY CONSENT ORDER, ETC., IN REGARD TO ALLEGED VIOLATION OF SECS. 5 AND 12 OF THE FEDERAL TRADE COMMISSION ACT Docket C-3744. Complaint, May 27, 1997--Decision, May 27, 1997 This consent order prohibits Gerber, among other things, from making any claims, without competent and reliable scientific substantiation, about the extent to which doctors or other health, nutrition, child care or medical professionals recommend, approve of, or endorse baby or toddler food; and from misrepresenting the results or existence of any survey, test or research. Appearances For the Commission: Jill E. Samuels and Rosemary Rosso. For the respondent: John J. James and Jane Gennaro, in-house counsel, Fremont, MI.

COMPLAINT The Federal Trade Commission, having reason to believe that Gerber Products Company, a corporation ("respondent"), has violated the provisions of the Federal Trade Commission Act, and it appearing to the Commission that this proceeding is in the public interest, alleges:

1. Respondent Gerber Products Company ("Gerber") is a Michigan corporation with its principal office or place of business at 445 State Street, Fremont, Michigan.

2. Respondent has manufactured, advertised, labeled, offered for sale, sold, and distributed products to the public, including Gerber baby and toddler foods. Gerber baby and toddler foods are "foods" within the meaning of Sections 12 and 15 of the Federal Trade Conunission Act.

3. The acts and practices of respondent alleged in this complaint have been in or affecting commerce, as "commerce" is defined in Section 4 of the Federal Trade Commission Act. 4. Respondent has disseminated or has caused to be disseminated advertisements for Gerber baby and toddler foods, including but not necessarily limited to the attached Exhibits A through D. These advertisements contain the following statements and depictions: Complaint 123 F.T.C. A. [Depiction: Smiling baby] VOICEOVER: "There's only one baby like yours." [Depiction: Jar of Gerber baby food] VOICEOVER: "And only one baby food like ours. Gerber." [Depiction: Fresh apples] VOICEOVER: "No one knows more about purity, .. . " [Depiction: Fresh carrots] VOICEOVER: " . . . safety and nutrition . . . "[Depiction: Toddler being fed] VOICEOVER: " ... (and how to make sure baby likes it!) . .. " [Depiction: Jars of Gerber baby and toddler food] VOICEOVER: " ... than Gerber. To learn more why four out of five pediatricians who recommend baby food recommend Gerber, ... " [Depiction: Baby being fed] "1-800-4-GERBER" VOICEOVER: " . . . call us, anytime, day or night. You know you can trust Gerber . .. " [Depiction: Woman eating an apple] "For learning to eat smart, right from the start." VOICEOVER: " ... for learning to eat smart, right from the start." [Exhibit A, television advertisement] B. [Ad translated from Spanish] [SFX: Baby crying] WOMAN: "Oh! Mom could you hand me the baby food from the kitchen. The baby is hungry!"

MOM: "Hey, but not all of them are Gerber." WOMAN: "But those are less expensive. Aren't they all the same?" MOM: ''Of course not. Gerber is the most recommended by pediatricians." VOICEOVER: "She knows that there is nothing more nutritious and reliable for babies. As a matter of fact, four out of every five pediatricians that recommend baby food recommend Gerber."

WOMAN: "Now that I know I will always buy Gerber. My baby's health is priceless." [SFX: Baby laughing] · VOICEOVER: "For a better start in life, give him only Gerber." [Exhibit B, radio advertisement] C. [Gerber ran a promotion in which consumers who purchased a jar of Beech- Nut baby food were given a checkout coupon for Gerber baby food that offered five minutes of free long-distance telephone time upon calling an 800-number and listening to the following recording] "Congratulations on your free five minutes of long distance, compliments of Gerber. Gerber feels there are a few things you should know. For one, nobody makes a safer baby food than Gerber. Plus, four out of five pediatricians who recommend baby food recommend Gerber. And nobody else knows more about purity, safety, nutrition, and of course, taste. And Gerber offers more variety than any other brand -- more than 180 kinds! In a few of those foods we add a controlled amount of sugar, or tapioca. Because research has proven it enhances the taste, without compromising the nutritional composition. No other baby food in the world does all that. Give Gerber a try and fmd out why it's the baby food more pediatricians recommend. To begin your call, use your key pad to enter your personal identification number found on your store receipt." [Exhibit C, script of recorded message] D. "4 OUT OF 5 PEDLA TRICIANS* RECOMMEND GERBER *A 1994 CONTEMPORARY PEDLATRICS RECOMMENDATION STUDY FOUND THAT 88% OF PEDIATRICIANS WHO RECOMMEND BABY FOOD RECOMMEND GERBER." [Exhibit D, display case sticker] GERBERPRODUCTSCOMPANY 1367 1365 Complaint 5. Through the means described in paragraph four, respondent has represented, expressly or by implication, that competent and reliable studies or surveys show that four out of five pediatricians who recommend baby food recommend Gerber.

6. In truth and in fact, competent and reliable studies or surveys do not show that four out of five pediatricians who recommend baby food recommend Gerber. In 'the survey relied upon by respondent, 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 to their patients at least once per week, 332, or approximately 82%, responded that they did not recommend any specific brands of baby food. Of the 76 pediatricians who did recommend specific brands, 67 recommended Gerber. Thus, only 67 of the 408.pediatricians who recommend baby food, or approximately 16%, recommend Gerber to their patients. Therefore, the representation set forth in paragraph five was, and is, false or misleading.

7. Through the means described in paragraph four, respondent has represented, expressly or by implication, that approximately four out of five pediatricians recommend Gerber.

8. Through the means described in paragraph four, respondent has represented, expressly or by implication, that it possessed and relied upon a reasonable basis that substantiated the representations set forth in paragraphs five and seven, at the time the representations were made.

9. In truth and in fact, respondent did not possess and rely upon a reasonable basis that substantiated the representations set forth in paragraphs five and seven, at the time the representations were made. In the survey relied upon by respondent, 67, or approximately 12%, of the 562 pediatricians surveyed recommended Gerber. Therefore, the representations set forth in paragraphs five and eight were, and are, false or misleading.

10. The acts and practices of respondent as alleged in this complaint constitute unfair or deceptive acts or practices, and the making of false advertisements, in or affecting commerce in violation of Sections 5(a) and 12 of the Federal Trade Commission Act. Complaint 123 F.T.C. EXHIBIT A PRODUCT GERBER PROOUOS/ 8A8Y FOOO 95·15562 Ml Tlllf: •for l£ARNING TO EAT SMART' PROGAAM: NEWS 10/1 2/ 95 :30 STATION: WA8C (NEW YORK) 12:16PM WOMAN ANNCR: There's only one and only one be by food like ours, beby like yours. Ger!Nr. No one knows more 1about purity, safety 1nd nutrilion, 1nd how to mike sure b1by likes it To learn more. why four out of five who I'KOmmend beby food than Ger!Nr. pediatrici1ns recommend Gerber. r '\ r () II tP"\· ., o.;:b .., 0 o ..;:f..r !· .;.,)li )·, \/1) F·tr· ~; es:t~r.~.. o·l·ERBER ;·•.H.B£?. :"$<f:->m f· ' :l( !Ult. ca•l us " anvtu'"e''--------~------~,r~dav Ot ntght You know you can t rust Gerber. for learning to eat smart. right from rne srart. ,MUSIC OUTI A&.SO AVAU.AIU IN coa.o• VIDIO·fA~I USIIttl ~~ ~-~ ~,_,,~-~."': .'-_t\.'"::''.~ -~~ ''-~- -~·,_~~._~.~~-- ::w.tl :' ·-.»"WoWr =:· .... ·:t ... :" : ...... - !'Xh ibi t .-.-1 GERBERPRODUCTSCOMWANY 1369 1365 Complaint EXHIBIT A Gerber Products Company Exhibit A-2 (Videocassette) Complaint 123 F.T-.C. EXHffiiTB :"::.::..i.::-:::c: ~r. . ..:Je::~ ~;:,: :: ··C~1.tcr.:1 ~ .:n..i.i .::..:..;::.:'' jQ;s ,- i<.J.d10 COPY SFX -:.Ccje:-: ''!fay ~~ ~a11uz:::: ei t>aby :·=c~ -s:X: 3_cbc !lcr.uJdO C..: !l ~.X"Ull <?"" d l:c!X Qc,,c U=::::"

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. :.-~::~;: ·:;:.;a ;i.bC: ljUC: no hay :1~~ ::J.s nuttiuvo y =~nt:.Ah~ ;::'.ll':l beb~£. o~ :-..:.::..1 .! Jc: ~;u.b 5 "c:~i;o::as q~ r:coauc:n<.lau ilia.:ntns pua bc::,o!s r:ccllllc:n.lln Gerber."

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GERBERPRODUCTSCOMWANY 1371 1365 Complaint EXHIBITC s~oppe:-s wt.c ::a -.-e ;:;u:-::based a ja:- =~ aee:::~-NI..it !:laby !cod -s~~e~~a~kets {i~ =~e 5 ~ . ~cc: s a=~a, a= :eas~ : ~ece~tiy, ~av~ =>een g:ve:1 a "Ca~a ::.::~ .:::o:;po::" as t~ey c!lecked out at ~"le is~e= . !~e co~=c~ ~!!e=s 5 tes ~! !re~ :~~q distance ~eiep~o~e ~:me, l: e =c::s :soc; 5C7-aa:7 . ~~ callinq :~e ber, one hea~s ~~e !o !:ow i r.~:

"Congra~:.:: a ~io:".s ::: you:- !:ee !:..ve ::r.i.:-::.:=es o~ lonq Ciste.r.ce. p:icents o~ ~e~~e:-.

Gerber feels ~~e:-e a~e a !ew ~inqs yo~ s~ould know. o~e. ~ r.a~es a sae~ baby !ooc t~a~ Ge~be~. ?~us, !o:.:r o~~ ~~ !:ve ~ediet:~c s ~~o =e~omcend b~~y teo=, ~eco6i1Dele :;e=::Jer. A..-oo: o!>ody e:se k::ows- nore about: p;.:::.: y. s~!ety, r.u~~:tio~, a~C =! : se. ~as~e.

And Ge~ber o!!e:-s oo~P 1/a:-.:.ety tha:-: c.::y o=he::- b:-a:~d, ~o~e ~ha~ one hcr.c:-e= ~:-:= e~ghty ki~cs. In a fe~ o! ~~cse :oods we adc a con~:-c::ed anount o! s~ga::­ o:- ta;~ioca, !:lee a use :-esea:-cll has p~ove:: i ~- e:~hances the tas~e ou~ comp~o~isi~~ ~~e ~utritiona! cocposition. No other baby !ooc !:: the vorlc does all that. Give Ge::-ber a ~=-v a::d tnd out wny it's the baby food more ;l8d!atricians reco~e;c.

T~ beqin yo~~ ca: : p:ease ~se yo~ c~ ~one phone to enter~ your Din number fou~c o:: your ~ed and whi~e ;~hone certificate. 1a beep is heard)"

·, ..... l~s~~.S.~ ~ · <•I TlflS IS A UVJ: 1'80a£ CUD! A~t.~ ''!?~t: :; --: :.. :•" • FREE . .&!!er :> l>: ! ~~.::n:f 5 MINUTES OF LONG ~ ,o-' ..:• ;:~''•: ·:, .... DISTANCE PHONE CALLS GOOC Dl THE OS. PUEIITO ilco • THE US VliGIJII ISLES Ill DIAL: 400-507·8607 I'UI HUMBER; ~7~}6916 ai.UPOo!Ui- l:HKl(QUTCOIWOIUII"' C!lfCKOUTCOUPONfl@ CHECKOUTCOUPmlfn' EXhibit c Complaint EXHIBITD ...

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·~:.·~:.!. ·! !.' . ·_-, ·~ £xh1!:.1c: ------------------ - ~-r·· GERBERPRODUCTSCONWANY 1373 1365 Decision and Order DECISION AND ORDER The.Federal Trade Commission having initiated an investigation of certain acts and practices of the respondent named in the caption hereof, and the respondent having been furnished thereafter with a copy ·of a draft of complaint which the Bureau of Consumer Protection proposed to present to the Commission for its consideration and which, if issued by the Commission, would charge respondent with violation of the Federal Trade Commission Act; and The respondent, its attorney, and counsel for Federal Trade Commission having thereafter executed an agreement containing a consent order, an admission by the respondent of all the jurisdictional facts set forth in the aforesaid draft of complaint, a statement that the signing of said agreement is for settlement purposes only and does not constitute an admission by respondent that the law has been violated as alleged in such complaint, or that the facts as alleged in such complaint, other than jurisdictional facts, are true and waivers and other provisions as required by the Commission's Rules; and The Commission having thereafter considered the matter and having determined that it had reason to believe that the respondent has violated the said Act, and that complaint should issue stating its charges in that respect, and having thereupon accepted the executed consent agreement and placed such agreement on the public record for a period of sixty (60) days, now in further conformity with the procedure prescribed in Section 2.34 of its Rules, the Commission hereby issues its complaint, makes the following jurisdictional findings and enters the following order:

1. Respondent Gerber Products Company is a Michigan corporation with its principal office or place of business at 445 State Street, Fremont, Michigan.

2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondents, and the proceeding is in the public interest.

ORDER DEFINITIONS For purposes of this order, the following definitions shall apply: 1. "Competent and reliable scientific evidence" shall mean tests, analyses, research, studies, or other evidence based on the expertise 13 74 FEDERAL TRADE COMMISSION DECISIONS Decision and Order 123 F.T.C. of professionals in the relevant area, that has been conducted and evaluated in an objective manner by persons qualified to do so, using J>- 'procedures generally accepted in the profession to yield accurate and reliable results.

2. Unless otherwise specified, "re~pondent" shall mean Gerber Products Company, a corporation, its successprs and assigns, and its officers, agents, representatives and employees. 3. "In or affecting commerce" shall mean as defined in Section 4 of the Federal Trade.Commission Act, 15 U.S.C. 44. 4. "Baby or toddler food" shall mean any food or juice manufactured, labeled, advertised, promoted, offered for sale, sold, or distributed by respondent for consumption by infants and children up to 4 years of age.

I.

It is ordered, That respondent, directly or through any corporation, subsidiary, division or other device, ~n connection with the manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of baby or toddler food shall not make· any representation, in any manner, expressly or by implication, about: A. The extent to which doctors or other health, nutrition, child care, or medical professionals recommend such product; or B. The recommendation, approval, or endorsement of such product by any health, nutrition, child care; or medical professional, l .. profession, group, or other such entity, unless, at the time it is made, respondent possesses and relies upon competent and reliable evidence, which when appropriate must be competent and reliable scientific evidence, that substantiates the representation.

II.

It is further ordered, That respondent, 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 any baby or toddler food, in or affecting commerce, shall not misrepresent, in any manner, expressly or by implication, the existence, contents, validity, results, conclusions or interpretations of any survey, test, study, or research. GERBER .PRODUCTS COMPANY 1375 .! 1365 Decision and Order III .

. Nothing in this order shall prohibit respondent from making any representation that is specifically permitted in labeling for any baby or,toddler food by regulations promulgated 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. IV.

It isfurther ordered, That respondent, and its successors and assigns, shall for three (3) years after the last date of dissemination of any representation covered by this order, maint(,lin and upon request make available to the Federal Trade Commission for inspection and copymg:

A. All advertisements and promotional materi~ls containing the representation;

B. All materials that were relied upon in disseminating the· representation; and C. All tests, reports, studies, surveys, demonstrations, or other evidence in its possession or control that contradict,. qualify, or call into question the representation, or the basis relied upon for the representation, including written consumer complaints or any communications with governmental or consumer protection organizations.

v.

It is further ordered, That respondent, and its successors and assigns, shall:

A. Within thirty (30) days after the date of service of this order, deliver a copy of this order to all current principals, officers, directors, and sales, advertising, and marketing managers, and to all current employees, agents, and representatives having responsibilities with respect to the subject matter of this order; and B. For a period of five (5) years after the date of service of this order, deliver a copy of this order to all future principals, officers, directors, and sales, advertising, and marketing managers, and to all , • I Decision and Order 123 F.T.C. employees, agents, and representatives having responsibilities with respect to the subject matter of this order, within thirty (30) days after the person assumes such position or responsibilities. VI.

It is further ordered, That respondent, and its successors and assigns, shall notify the Commission at least thirty (30) days prior to any change in the corporation(s) that may affect compliance obligations arising under this order, including but not limited to a dissolution, assignment, sale, merger, or other action that would result in the emergence of a successor corporation; the creation or dissolution of a subsidiary, parent, or affiliate that engages in any acts or practices subject to this order; the proposed filing of a bankruptcy 4 ·· petition; or a change in the corporate name or address. Provided, however, that, with respect to any proposed change in the corporation about which respondent learns less than thirty (30) days prior to the date such action is to take place, respondent shall notify the Commission as soon as is practicable after obtaining such knowledge. All notices required by this Part shall be sent by certified mail to the Associate Director, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Washington, D.C. VII.

It is further ordered, That respondent, and its successors and ·Iassigns, shall, within sixty (60) days after the date of service of this order, and at such other times as the Federal Trade Commission may require, file with the Commission a repon, in writing, setting forth in detail the manner and form in which it has complied with this order. VIII.

This order will terminate on May 27, 2017, 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 Part in this order that terminates in less than twenty (20) years;

GERBERPRODUCTSCONWANY 1377 1365 Decision and Order 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 Part.

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 Part as though the complaint had never been 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.

.1.

Complaint 123 F.T.C.