Nutraceuticals International, LLC

Text (OCR of the scan; may contain errors)

Responses to Petitions to Quash

NUTRACEUTICALS INTERNATIONAL, LLC

FTC File No. 082 3130 Decision, July 30, 2008

RESPONSE TO NUTRACEUTICALS INTERNATIONAL’S APPEAL OF

THE DENIAL BY COMMISSIONER HARBOUR OF THE PETITION BY

NUTRACEUTICALS INTERNATIONAL, LLC TO QUASH OR LIMIT

CIVIL INVESTIGATIVE DEMAND

Dear Mr. Klivinyi:

This letter advises you of the Commission’s disposition of Nutraceuticals International, L.L.C.’s (“NI”) Appeal from the Letter Ruling denying the Petition to Quash or Limit Civil Investigative Demand¹ (“Appeal”) issued in conjunction with an investigation of NI by the Federal Trade Commission (hereinafter “FTC” or “Commission”). As set forth below, the Appeal is dismissed as moot.² NI’s Petition claimed that the Civil Investigative Demand (“CID”) seeks information that is “clearly beyond the scope of the investigation as defined by the Commission[,]” and also sought to quash the CID because Commission Staff had allegedly acted inappropriately toward an NI clerical employee on one occasion. Petition at 1.3 The Letter Ruling denied the Petition on the grounds that it failed to comply with the requirements of Commission Rules 2.7(d)(2) and 4.1(a)(2)(i), 16 C.F.R. §§ 2.7(d)(2) and 4.1(a)(2)(i), which respectively address the 1 Letter Ruling Denying Petition of Nutraceuticals International, LLC to Quash or Limit Civil Investigative Demand, File No. 082-3130 (Jun. 25, 2008) (“Letter Ruling”).

2 Had we reached the merits of NI’ s appeal, we would have affirmed the denial of NI’s Petition to Quash or Limit CID for substantially the same reasons set forth in the Letter Ruling, 3 Like the Letter Ruling, we find no evidence that any alleged misconduct on the part of Commission staff provided any grounds for quashing or limiting the CID.

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Responses to Petitions to Quash requirement that a Petitioner must have conferred with Commission staff regarding its objections in advance of filing a petition to quash or limit a CID and the qualification of an NI officer to represent it before the Commission on its Petition. Letter Ruling at 3. The Letter Ruling also denied the Petition on the grounds that NI had failed to satisfy its burden of showing that the information sought was either outside the scope of the investigation or tainted by the alleged misconduct of Commission staff. Letter Ruling at 4-5. The Letter Ruling directed NI to comply with the CID by July 7, 2008. 16 C.F.R., § 2.7(f). NI’s appeal was timely filed on July 1, 2008. In its appeal, NI claims that the Letter Ruling erroneously found that NI’s Petition was “procedurally deficient (and) without substantive merit.” Appeal at 1. NI also requested a stay of the July 7 return date until after the Commission had ruled on the appeal as well as for an additional period sufficient for NI “to access the Federal District Court to protect the Company’s legal rights and interests.”4 Id. NI further advised the Commission that if its request for a stay was not granted prior to July 7, then NI intended to “submit its responses to the second CID directly to the Commissioners to hold in strict confidence and not release to Commission staff investigators” pending the Commission’s decision and resolution of any actions initiated by NI in the federal courts.⁵ Id. 4 Contrary to Petitioner’s apparent belief that such judicial review would be available to it immediately following the Commission’s decision of this appeal, it is well established that FTC investigatory process is not self-executing; accordingly, this CID can only be enforced (or denied enforcement) by the district court in a CID enforcement action brought by the Commission – preenforcement challenges to Commission CIDs brought by the party being subpoenaed are premature and not ripe for judicial review. See, e.g., Atlantic Richfield Co. v. Fed. Trade Commu, 546 F.2d 646, 648-50 (5th Cir. 1977) (affirming district court’s dismissal of action for declaratory and injunctive relief challenging FTC subpoena); Anheuser-Busch Inc. v. Fed. Trade Commu, 359 F.2d 487, 490 (8th Cir 1966) (same).

5 NI cites no legal authority to support its request that its CID responses be Responses to Petitions to Quash On July 8, 2008, the Secretary received NI’s Response to the Second Civil Investigative Demand, dated July 3, 2008, The Commission has reason to believe that NI has substantially complied with the CID, Thus, the relief requested by the Petition – that NI be excused from complying with the CID, or that the CID be substantially modified prior to such compliance – was rendered moot by NI’s substantial compliance with the commandments of the CID.

For the reasons set forth above, IT IS ORDERED that NI’s Appeal should be, and it hereby is, DISMISSED. By Direction of the Commission. withheld from the “Commission staff investigators” during the pendency of this appeal. The Commission’s Rules have no provision for such relief, and the Commission is unaware of any other legal authority which would support that relief.

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Responses to Petitions to Quash

CVS CAREMARK CORPORATION

FTC File No. 072 3119 Decision, August 6, 2008

RESPONSE TO CVS CAREMARK CORPORATION’S PETITION TO

LIMIT OR QUASH CIVIL INVESTIGATIVE DEMAND

Dear Mr. DiResta:

This letter advises you of the disposition of CVS Caremark Corp.’s (“Petitioner” or “CVS”) Petition to Limit or Quash Civil Investigative Demand (“Petition”) served on it in conjunction with the Federal Trade Commission’s (“FTC” or “Commission”) investigation of CVS’s consumer privacy and data security practices. The Petition is denied for the reasons hereinafter stated. The new date for Petitioner to comply with the Civil Investigative Demand (“CID”) is August 18, 2008.

This ruling was made by Commissioner Pamela Jones Harbour, acting as the Commission’s delegate. See 16 C.F.R. § 2.7(d)(4). Petitioner has the right to request review of this matter by the full Commission. Such a request must be filed with the Secretary of the Commission within three days after service of this letter.1

I. Background and Summary The Commission and the Office of Civil Rights of the Department of Health and Human Services (“HHS”) are conducting coordinated investigations of CVS’s consumer privacy and data security practices. Petition at 2. Television reports detailed CVS’s failure to properly dispose of sensitive consumer information that was discovered in publicly-accessible garbage 1 This letter decision is being delivered by facsimile and express mail. The facsimile copy is being provided as a courtesy. Computation of the time for appeal should be calculated from the date you received the original by express mail.