Abbott Laboratories

Text (OCR of the scan at left; may contain errors)

Complaint 123 F.T.C.

IN THE MATTER OF

ABBOTT LABORATORIES

CONSENT ORDER, ETC., IN REGARD TO ALLEGED VIOLATION OF SECS. 5 AND 12 OF THE FEDERAL TRADE COMMISSION ACT

Docket C-3745. Complaint, May 30, 1997--Decision, May 30, 1997

This consent order prohibits, among other things, the Illinois corporation that manufactures and advertises Ensure, a meal supplement, from making scientifically unsubstantiated claims about the extent to which doctors or other professionals recommend any food dietary or nutritional supplement for healthy adults; and about the recommendation, approval or endorsement of any such product by any person, profession or other entity. The consent order also prohibits the respondent from misrepresenting that one serving of any product sold as a meal replacement or supplement, including Ensure, for healthy adults provides vitamins in an amount comparable to typical vitamin supplements; and from misrepresenting the amount of any vitamin or any other nutrient or ingredient in such products.

Appearances

For the Commission: Michelle Rusk, Michael Ostheimer and C. Lee Peeler.

For the respondent: Nancy Buc, Buc & Beardsley, Washington, D.C.

COMPLAINT

The Federal Trade Commission, having reason to believe that Abbott Laboratories, 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 Abbott Laboratories ("Abbott") is an Illinois corporation with its principal office or place of business at One Abbott Park Road, Abbott Park, Illinois.

2. Respondent has manufactured, advertised, labeled, offered for sale, sold, and distributed nutritional products to the public, including Ensure products. Ensure products are marketed through Abbott's Ross Products Division and include Ensure, Ensure High Protein, Ensure Plus, Ensure With Fiber, Ensure Pudding, and Ensure Light. These products are "foods" and/or "drugs" within the meaning of Sections 12 and 15 of the Federal Trade Commission 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.

ABBOTT LABORATORIES

Complaint

4. Respondent has disseminated or has caused to be disseminated advertisements for Ensure, including but not necessarily limited to the attached Exhibits A through D. These advertisements contain the following statements and depictions:

A. VIDEO Close-up of a graduation photograph of man and woman. Man and woman who appear to be in their middle thirties.

Can of Ensure being poured into glass.

Man and woman jogging in a park.

Cans of Ensure. Super:

RECOMMENDED #1 BY DOCTORS.

AUDIO Man: For 15 years, we've taken good care of each other. Woman: We sure have.

Man: And to take better care of our health, we started drinking Ensure. Woman: More than a vitamin supplement, Ensure is a delicious drink with all the nutrients adults need to help stay healthy, active, be energetic. Man: Drink Ensure as a meal.

Woman: Or in between meals.

Man: Ensure is even recommended number one by doctors as a source of complete balanced nutrition. Woman: Ensure, to your health honey.

Man: Uh, uh, to our health.

(Exhibit A, television advertisement entitled "Younger Husband/Wife").

B. VIDEO Close-up of black and white photograph of little girl and young father fishing. Father and adult daughter fishing on dock.

Three cans of Ensure. Super:

RECOMMENDED #1 BY DOCTORS.

Can of Ensure being poured into glass.

Father and daughter in boat with father casting. Three cans of Ensure. Super:

RECOMMENDED #1 BY DOCTORS.

AUDIO Woman: When I was young, you and mom made sure I ate right.

Man: Well you were my little girl.

Woman: Well today we're listening to our doctors and taking better care of our health with Ensure. Man: Ensure is recommended number one by doctors as a source of complete balanced nutrition. Woman: More than a vitamin supplement, Ensure has all the nutrients adults need to help stay healthy, active, be energetic. Man: Drink Ensure as a meal.

Woman: Or in between meals. Ensure, to your health dad. Mother: Uh, uh, to our health.

Announcer: Ensure, doctors recommend it number one.

(Exhibit B, television advertisement entitled "Father/Daughter").

Complaint 123 F.T.C.

C. Wife: Oh boy, that water felt great! Husband: Sure did. I always feel so good after a swim. Wife: For 15 years, we've shared a pretty active life. Husband: I've loved every minute.

Wife: And to help make sure we stay active, one thing we've done lately is to drink Ensure. Husband: Hm Hmm. See, our doctor told us that a key to being energetic and in good health is good nutrition. Wife: Right. And one way to help guarantee that you're getting the nutrition you need, is by drinking Ensure. Husband: More than a vitamin supplement, Ensure is a delicious drink that provides complete balanced nutrition. Wife: It's got the protein, carbohydrates, minerals and vitamins your body needs everyday to help you stay healthy, active, be energetic. Husband: Drink Ensure anytime.

Wife: I like it as a delicious meal.

Husband: I like it in between meals. Ensure is even recommended number one by doctors and nutritionists for complete balanced nutrition. Wife: So make sure the ones you love get the nutrition they need. Ensure. To your health, dear. Husband: Uh, uh, to our health.

(Exhibit C, radio advertisement entitled "Younger Husband/Wife"). D. Depiction: Snapshots of a young man and a young woman. "Back then we promised to make the most out of life...today we're enjoying every moment." DRINK TO YOUR HEALTH WITH ENSURE.® Depiction: Man and woman who appear to be in their thirties holding glasses of Ensure. The #1 Doctor Recommended Source of Nutrition. Most doctors will tell you that a key to good health is good nutrition. But even if you've improved your diet by eating more lean meats, fruits and vegetables, you still may not be getting the balanced nutrition you need. So how can you help guarantee that you and the ones you love get the right nutrition? With Ensure and New Ensure High Protein.

Ensure is more than a vitamin supplement. It's complete balanced nutrition in a delicious ready-to-serve drink that provides an excellent balance of protein, carbohydrate, vitamins, and minerals. In addition, New Ensure High Protein is low in cholesterol and low in saturated fat while being high in the nutrients you need everyday to help stay healthy, be energetic and more active. Drink your favorite Ensure anytime. Enjoy it as a healthy meal by itself or as a healthy between-meal snack. Ensure is even recommended #1 by doctors as a complete source of nutrition. So make sure the ones you love get the right nutrition. Drink Ensure and drink to your health. (Exhibit D, print advertisement).

5. Through the means described in paragraph four, respondent has represented, expressly or by implication, that many doctors recommend Ensure as a meal supplement and as a meal replacement for healthy adults, including those in their thirties and forties.

ABBOTT LABORATORIES 1381

1378 Complaint

6. 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 representation set forth in paragraph five, at the time the representation was made.

7. In truth and in fact, respondent did not possess and rely upon a reasonable basis that substantiated the representation set forth in paragraph five, at the time the representation was made. Among other reasons, a survey of doctors relied upon by respondent was not designed to elicit whether many doctors actually recommend Ensure as a meal supplement or meal replacement for healthy adults, as opposed to for adults who are ill or elderly and may have nutritional deficiencies. The survey merely asked doctors to assume that they would recommend a supplement for adults who were not ill, and then to select the brand they would most recommend. Therefore, the representation set forth in paragraph six was, and is, false or misleading.

8. Through the means described in paragraph four, respondent has represented, expressly or by implication, that one serving of Ensure provides vitamins in an amount comparable to typical multivitamin supplements.

9. In truth and in fact, one serving of Ensure does not provide vitamins in an amount comparable to typical multivitamin supplements. While the typical multivitamin supplement provides at least 100% of the recommended daily intake (RDI) of vitamins for which RDIs have been established, at the time the advertisements were first disseminated, one serving of Ensure provided 62% of the RDI of Vitamin C and between 12% and 26% of the RDIs of the other vitamins for which RDIs have been established. Ensure has been reformulated and currently one serving provides 50% of the RDI of Vitamin C and 25% of the RDIs of the other vitamins for which RDIs have been established. Therefore, the representation set forth in paragraph eight was, and is, 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

RTV PRODUCT: ENSURE VITAMIN SUPPLEMENT 95-09482 KH TITLE: "LOW IN SATURATED FAT"

PROGRAM: WORLD NEWS TONIGHT 6/16/95 :30 STATION: ABC (NEW YORK) 6:47PM

(MUSIC) MAN: For 15 years, we've taken good care of each other. WOMAN: We sure have.

MAN: And to take better care of our health,

we started drinking Ensure.

WOMAN: More than a vitamin supplement.

Ensure is a delicious drink with all the nutrients

adults need to help stay healthy, active, be energetic. MAN: Drink Ensure as a meal.

WOMAN: Or in between meals.

MAN: Ensure is even recommended

RECOMMENDED #1 BY DOCTORS number one by doctors as a source of complete balanced nutrition. WOMAN: Ensure. To your health, honey. MAN: Uh uh, to our health. ANNOUNCER: Also try Ensure high protein. It's low in saturated fat. (MUSIC OUT)

ALSO AVAILABLE IN COLOR VIDEO-TAPE CASSETTE Exhibit A-1 This Exhibit is a true and accurate copy of the advertisement described in the accompanying complaint.

ABBOTT LABORATORIES Complaint EXHIBIT A

Video cassette of Younger Husband/Wife and Father/Daughter Ensure television advertisements

PROFESSIONAL VIDEO CASSETTE

T-120PR PROFESSIONAL GRADE

VHS

Exhibit A-2

Complaint 123 F.T.C.

EXHIBIT B RTV PRODUCT: ENSURE VITAMIN SUPPLEMENT 95-10434 AH TITLE: "FATHER & DAUGHTER"

PROGRAM: CBS EVENING NEWS 07/10/95 :30 STATION: CBS (NEW YORK) 6:48PM

[MUSIC] DAUGHTER: When I was young, you and Mom made sure I ate right.

FATHER: Well you were my little girl.

DAUGHTER: Well today we're listening to our doctor, and taking better care of our health with Ensure. FATHER: Ensure is recommended number one by Doctors as a source of complete balanced nutrition. DAUGHTER: More than a Vitamin Supplement

Ensure has all the nutrients adults need to help stay healthy, active,

be energetic. FATHER: Drink Ensure as a meal-- DAUGHTER: or in between. Ensure. to your health Dad. FATHER: [illegible] un. to our health ANNOcr: Ensure. doctors recommend it number one. (MUSIC OUT)

ALSO AVAILABLE IN COLOR VIDEO-TAPE CASSETTE Exhibit B-1 While F.T.C. news summaries are in the public domain, the video news releases may be copyrighted. They are provided courtesy of the Federal Trade Commission.

ABBOTT LABORATORIES

Complaint

EXHIBIT B

Video cassette of Younger Husband/Wife and Father/Daughter Ensure television advertisements

PROFESSIONAL VIDEO CASSETTE

T-120PR PROFESSIONAL GRADE

VHS

Exhibit B-2

Complaint 123 F.T.C.

EXHIBIT C

SCRIPT FOR ☒ RADIO ☐ TELEVISION FROM LCF&L

Date: 6/21/94 Client: Ross Labs\Ensure Commercial title: "Younger Husband/Wife"

Version no: RLE-428-60 Length: :60

(MUSIC & SFX UNDER)

WIFE: Oh, boy, that water felt great!

HUSBAND: Sure did. I always feel so good after a swim.

WIFE: For 15 years, we've shared a pretty active life.

HUSBAND: I've loved every minute.

WIFE: And to help make sure we stay active, one thing we've been doing lately is to drink ENSURE.

HUSBAND: Hm Hmm. See, our doctor told us that a key to being energetic and in good health is good nutrition.

WIFE: Right. And one way to help guarantee that you're getting the nutrition you need, is by drinking ENSURE.

HUSBAND: More than a vitamin supplement, ENSURE is a delicious drink that provides complete balanced nutrition.

WIFE: It's got the protein, carbohydrates, minerals and vitamins your body needs everyday to help you stay health, active, be energetic.

Exhibit C

ABBOTT LABORATORIES Complaint EXHIBIT C HUSBAND: Drink ENSURE anytime.

WIFE: I like it as a delicious meal.

HUSBAND: I like it in between meals. ENSURE is even recommended #1 by doctors and nutritionists for complete balanced nutrition. WIFE: So make sure the ones you love get the nutrition they need. ENSURE. To your health, dear. HUSBAND: Uh, uh, to our health.

(SFX: CLINK) ANNOUNCER: Use as directed.

Exhibit C

Complaint 123 F.T.C.

EXHIBIT D

["Back then we promised to make the most out of life...today we're enjoying every moment."]

DRINK TO YOUR HEALTH WITH ENSURE.

The #1 Doctor Recommended Source of Nutrition.

Most doctors will tell you that a key to good health is good nutrition. But even if you've improved your diet by eating more lean meats, fruits and vegetables, you still may not be getting the balanced nutrition you need.

So how can you help guarantee that you and the ones you love get the right nutrition?

With Ensure and New Ensure High Protein.

Ensure is more than a vitamin supplement. It's complete, balanced nutrition in a delicious ready-to-serve drink that provides an excellent balance of protein, carbohydrate, vitamins and minerals. In addition, New Ensure High Protein is low in cholesterol and low in saturated fat while being high in the nutrients you need everyday to help stay healthy, be energetic and more active. Drink your favorite Ensure anytime. Enjoy it as a healthy meal by itself or as a healthy between-meal snack. Ensure is even recommended #1 by doctors as a complete source of nutrition.

So make sure the ones you love get the right nutrition. Drink Ensure and drink to your health.

ENSURE ENSURE Exhibit D

Available in 11 Delicious Flavors

ABBOTT LABORATORIES 1389 1378 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 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 attorneys, and counsel for the 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 complaint, a statement that the signing of the 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 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, and having duly considered the comments received, 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 Abbott Laboratories is a corporation organized, existing and doing business under and by virtue of the laws of the State of Illinois with its principal office or place of business at One Abbott Park Road, Abbott Park, Illinois.

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

ORDER

DEFINITIONS

For purposes of this order, the following definitions shall apply:

Decision and Order 123 F.T.C.

1. Unless otherwise specified, "respondent" shall mean Abbott Laboratories, a corporation, its successors and assigns, and its officers, agents, representatives and employees. 2. "In or affecting commerce" shall mean as defined in Section 4 of the Federal Trade Commission Act, 15 U.S.C. 44.

I.

It is 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 Ensure products, any other food, or any other dietary or nutritional supplement in or affecting commerce, shall not make any representation, in any manner, expressly or by implication, about:

A. The extent to which doctors or other professionals recommend such product for healthy adults; or B. The recommendation, approval, or endorsement of such product by any person, profession, group, or other 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. For purposes of this order, "competent and reliable scientific evidence" shall mean tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that has been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.

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 Ensure products, or any other product advertised, marketed or sold as a meal replacement or meal supplement for healthy adults, in or affecting commerce, shall not misrepresent, in any manner, expressly or by implication:

ABBOTT LABORATORIES

Decision and Order

A. That one serving of such product provides vitamins in an amount comparable to typical vitamin supplements; or B. The absolute or comparative amount of any vitamin or any other nutrient or ingredient contained in or provided by such product.

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.

III.

Nothing in this order shall prohibit respondent from making any representation for any product that is specifically permitted in labeling for such product by regulations promulgated by the Food and Drug Administration pursuant to the Nutrition Labeling and Education Act of 1990.

IV.

It is further ordered, That respondent, and its successors and assigns, shall for five (5) years after the last date of dissemination of any representation covered by this order, maintain and upon request make available to the Federal Trade Commission for inspection and copying:

A. All advertisements and promotional materials 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 complaints and other communications with consumers or with governmental or consumer protection organizations.

V.

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

Decision and Order 123 F.T.C.

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 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 managers, and to all 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 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 assigns, 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 report, in writing, setting forth in detail the manner and form in which it has complied with this order.

ABBOTT LABORATORIES

Decision and Order

VIII.

This order will terminate on May 30, 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; 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.

Complaint 123 F.T.C.

EXHIBIT A-1

VAN DEN BERGH FOODS COMPANY

Promise.

"HEADLINES"

HEART DISEASE NATION'S #1 KILLER

SFX: Dramatic Tone.

MUSIC: YOU MAKE ME FEEL SO YOUNG.

YOU MAKE ME FEEL THERE ARE

SONGS TO BE SUNG.

HEALTH TODAY Serum Cholesterol.

the warning is real

SFX: Dramatic Tone.

MUSIC: AND EVERY TIME I SEE YOU GRIN...

FIT OR FAT

SFX: Printing press sounds.

VO: Promise Spread has no cholesterol

Includes Promise Spread less saturated fat than leading margarines.

and is lower in saturated fat than leading margarines.

MUSIC: YOU MAKE ME

FEEL SO YOUNG.

VO: Promise. Get heart smart.

EXHIBIT A-1

CONOPCO, INC. 137 Complaint EXHIBIT A-2 "HEADLINES" AD (VIDEOCASSETTE)

Complaint 123 F.T.C.

EXHIBIT B

PROMISE: FOR ALL THE LOVES OF YOUR LIFE.

GET HEART SMART:

Be good to yourself and the ones you love. Include great tasting Promise in a wellbalanced, nutritious diet. Eating right— it's one good way to show you care.

Promise Promise Promise PROMISE FAT FREE

© 1994 Van den Bergh Foods, Inc.

MANUFACTURER'S COUPON EXPIRES 3/31/95 SAVE 35¢ on any Promise stick product Promise Promise 44698 5 11115 41035 1

MANUFACTURER'S COUPON EXPIRES 3/31/95 SAVE 50¢ on any Promise soft product Promise Promise 44668 5 11115 42050 1

CONOPCO, INC. 139 131 Complaint

EXHIBIT C-1

McCANN-ERICKSON TITLE PAGE 1994 TRANO ID

Open on Product shot. Announcer VO: Camera pans.... Promise Ultra (New footage)

...from right 65% less fat and calories to left... than margarine. (New footage) Super: Include Promise as part of a lowcholesterol, low saturated fat diet

Knife spreads And a light delicate taste margarine on muffin.

(Pick-up footage)

Woman in kitchen (Slic/ss/cing enjoyment with muffin.

(Pick-up footage) Exhibit C-1

Complaint 123 F.T.C.

EXHIBIT C-2

McCANN-ERICKSON TITLE PAGE

Product shot.

(New footage)

Promise Ultra Get Heart Smart.

Get Heart Smart

Exhibit C-2

CONOPCO, INC.

Complaint EXHIBIT D Ultra FAT FREE Title: "The News/ Non-New"

SFX MUSICAL/ ELECTRONIC SONG: YOU MAKE ME FEEL SO YOUNG SFX COMPUTER PRINTER THE FIRST Fat Free MARGARINE SONG: YOU MAKE ME FEEL THERE ARE SONGS TO BE SUNG AN NCR VIO: Discover Fat Free Promise Ultra.

Zero fat with just five delicious calories a serving.

SONG: AND EVERY TIME I SEE YOU GRIN AN NCR VIO: It's the first fat free margarine. Definitely one of a kind.

SFX ELECTRONIC SONG: YOU MAKE ME FEEL SO YOUNG AN NCR VIO: Regular or Fat Free Promise Ultra.

Get Heart Smart.

Exhibit D

Complaint 123 F.T.C.

EXHIBIT E

Promise FAT FREE

The lowest in fat and calories of margarines or spreads.

Great taste, half the saturated fat and calories of margarine.

Promise Ultra 65% LESS FAT

Promise Light Margarine Half the saturated fat and calories of margarine.

Always the smart choice for cooking and baking.

Promise 70% less saturated fat than regular margarine.

THERE'S A Promise, THAT'S RIGHT FOR YOU.

Promise® offers you more choices for smart eating than ever before.

Enjoy great tasting Promise as part of a well-balanced, nutritious diet.

Whatever your lifestyle, there's a Promise that's right for you.

GET HEART SMART.™

FREE* Decorative Tub Canister

...just drop your Promise® tub inside!

MANUFACTURER'S COUPON / EXPIRES 2/28/95

SAVE 40¢ on any Promise.

product

RETAILER: One coupon per purchase of product indicated. Consumer to pay sales tax. Cash value 1/20¢. Good only in U.S.A. We will reimburse you for the face value plus handling, if submitted in compliance with Conopco, Inc.'s Coupon Redemption Policy. For free copy and/or coupon redemption, send to: Conopco, Inc., CMS Dept. 13301, 1 Fawcett Drive, Del Rio, TX 78840. Expires 2/28/95. ©1994 Conopco, Inc.

44634

5 13301 20040 3

Promise Light Promise Ultra

MAIL-IN CERTIFICATE / EXPIRES 1/31/95

FREE PROMISE TUB CANISTER

BUY: Any TWO Promise® products SEND: This completed certificate, plus TWO proofs-of-purchase (UPC symbols) and your cash register receipt(s) with the purchase prices circled to:

Promise® Canister Offer, P.O. Box 6285 Douglas, AZ 85653-6285 RECEIVE: One Promise® Decorative Tub Canister

Name____________________________________________________ Address__________________________________________________ City____________________ State__________ Zip______________

This certificate must accompany your request and may not be reproduced. Limit one request per family or address. Offer good only in U.S.A. Void where prohibited, taxed or restricted. Please allow 8 weeks for delivery. Offer expires 1/31/95.

EXHIBIT E

CONOPCO, INC. 143 131 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, and having duly considered the comments received, 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 Conopco, Inc. is a New York corporation with its office and principal place of business located at 390 Park Avenue, New York, New York. Van Den Bergh Foods Company is an unincorporated operating division of Conopco, Inc. Conopco, Inc. is a wholly-owned subsidiary of Unilever United States, Inc., a Delaware corporation with its office and principal place of business also located at 390 Park Avenue, New York, New York. 2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondents, and the proceeding is in the proceeding is in the public interest.

Decision and Order 123 F.T.C.

ORDER

I.

It is ordered, That Conopco, Inc., a corporation, its successors and assigns, and its officers, agents, representatives and employees, directly or through any corporation, subsidiary, division or other device (including but not limited to Van Den Bergh Foods Company), in connection with the manufacturing, advertising, labeling, promotion, offering for sale, sale or distribution of Promise spread, Promise Extra Light margarine, Promise Ultra (26%) spread, or any other margarine or spread in or affecting commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from representing, directly or by implication, that:

A. Eating Promise spread, Promise Extra Light margarine or Promise Ultra (26%) spread or any other margarine or spread will help to reduce the risk of heart disease; or B. Any margarine or spread has the relative or absolute 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 respondent possesses and relies upon a reasonable basis consisting of competent and reliable scientific evidence that substantiates the representation; provided however, that any such representation that is specifically permitted in labeling for such food product 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 as required by this paragraph. For purposes of this order, "competent and reliable scientific evidence" shall mean tests, analyses, research, studies or other evidence based on the expertise of professionals in the relevant area, that has been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.

CONOPCO, INC. 145 131 Decision and Order

II.

It is further ordered, That respondent Conopco, Inc., a corporation, its successors and assigns, and its officers, agents, representatives and employees, directly or through any corporation, subsidiary, division or other device (including but not limited to Van Den Bergh Foods Company), in connection with the manufacturing, advertising, labeling, promotion, offering for sale, sale or distribution of Promise spread, Promise Extra Light margarine, Promise Ultra (26%) spread, or any other margarine or spread in or affecting commerce, as "commerce" is 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 such product. 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.

III.

It is further ordered, That respondent Conopco, Inc., a corporation, its successors and assigns, and its officers, agents, representatives and employees, directly or through any corporation, subsidiary, division or other device (including but not limited to Van Den Bergh Foods Company), in connection with the manufacturing, advertising, labeling, promotion, offering for sale, sale or distribution of Promise spread, Promise Extra Light margarine, or any other margarine or spread that contains a total fat disclosure amount as defined in Part V of this order, in or affecting commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from failing to disclose clearly and prominently in any advertisement or promotional material that refers, directly or by implication, to the absolute or comparative amount of cholesterol in such food:

A. The total number of grams of fat per serving; and B. For three (3) years from the effective date of this order, any advertising or promotion of any margarine or spread advertised,

Decision and Order 123 F.T.C.

promoted, offered for sale, sold or distributed under the Promise brand name that contains a total fat disclosure amount as defined in Part V of this order shall also disclose the percentage of calories derived from fat or a statement that the margarine or spread is not a "low fat" food.

IV.

Nothing in this order shall prohibit respondent from making any representation that is 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.

V.

For purposes of this order, the following terms and definitions shall apply:

A. The term "spread" shall mean any spread that has organoleptic properties similar to butter or margarine; B. The term "margarine" or "spread" shall not include:

1. Any foodservice margarine or spread sold in bulk sizes for use by restaurants or foodservice establishments or sold in individual portion packs for table service use by restaurants or foodservice operators, provided that said products bear no nutrient content or health benefit claims in any context on any such product package and provided further that respondent, its successors or assigns, does not advertise, promote, offer for sale, sell or distribute any such product to consumers; or 2. Any margarine or spread sold or distributed to consumers by third parties under private labeling agreements with respondent, its successors or assigns, provided respondent, its successors or assigns, does not participate in the funding, preparation or dissemination of any advertising of said products to consumers; and

C. For purposes of Part III of this order, the term "total fat disclosure amount" shall mean the disclosure level of fat as set forth in final regulations concerning cholesterol content claims as

CONOPCO, INC. 147

131 Decision and Order

promulgated by the Food and Drug Administration pursuant to the Nutrition Labeling and Education Act of 1990.

VI.

It is further ordered, That for five (5) 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 tests, 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.

VII.

It is further ordered, That respondent shall notify the Commission at least thirty (30) days prior to any proposed change, such as dissolution, assignment or sale resulting in the emergence of a successor corporation, the creation or dissolution of subsidiaries or any other change which may affect compliance obligations arising out of the order.

VIII.

It is further ordered, That respondent shall, within thirty (30) days after service upon it of this order, distribute a copy of this order to its Van Den Bergh Foods Company division and any other operating division engaged in the sale or marketing of margarines or spreads, to each of its managerial employees in its Van Den Bergh Foods Company division and any other operating division engaged in the sale or marketing of margarines or spreads, and to each of its officers, agents, representatives, or employees engaged in the preparation or placement of advertising or other material covered by this order.

Decision and Order 123 F.T.C.

IX.

It is further ordered, That this order will terminate on January 23, 2017, or twenty 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 in this order that terminates in less than twenty 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 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 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.

X.

It is further ordered, That respondent shall, within sixty (60) days after service upon it 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.

UNIVERSAL MERCHANTS, INC., ET AL. 149 149 Complaint

IN THE MATTER OF

UNIVERSAL MERCHANTS, INC., ET AL.

CONSENT ORDER, ETC., IN REGARD TO ALLEGED VIOLATION OF SECS. 5 AND 12 OF THE FEDERAL TRADE COMMISSION ACT

Docket C-3707. Complaint, Jan. 23, 1997--Decision, Jan. 23, 1997

This consent order prohibits, among other things, a California-based dietary supplement manufacturer and its president from claiming, without competent and reliable scientific substantiation, that any food, dietary supplement or drug reduces body fat, causes weight loss, increase lean body mass, or controls appetite or craving for sugar; from misrepresenting the results of any test, study or research; and from representing that any testimonial or endorsement is the typical experience of users of the advertised product, unless the claim is substantiated or the respondent discloses the generally expected results clearly and prominently.

Appearances

For the Commission: Rosemary Rosso, Maureen Enright, Anne V. Maher and Jill Samuels.

For the respondents: Ed Glynn and Gary Hailey, Venable, Baetjer, Howard & Civiletti, Washington, D.C.

COMPLAINT

The Federal Trade Commission, having reason to believe that Universal Merchants, Inc., a corporation, and Steven Oscherowitz, individually and as an officer of the corporation ("respondents"), have 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 Universal Merchants, Inc. is a Delaware corporation with its principal office or place of business at 4727 Wilshire Blvd., Suite 510, Los Angeles, CA. 2. Respondent Steven Oscherowitz is an officer of the corporate respondent. Individually or in concert with others, he formulates, directs, or controls the policies, acts, or practices of the corporation, including the acts or practices alleged in this complaint. His principal