L'Occitane, Inc.

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

IN THE MATTER OF L’OCCITANE, INC.

CONSENT ORDER, ETC. IN REGARD TO ALLEGED VIOLATIONS OF SECTION 5 OF THE FEDERAL TRADE COMMISSION ACT Docket No. C-4445; File No. 122 3115 Complaint, March 27, 2014 – Decision, March 27, 2014 This consent order addresses L’Occitane, Inc.’s advertising, marketing, and sale of “Almond Beautiful Shape” and “Almond Shaping Delight.” The complaint alleges that respondent represented, in various advertisements, that topical use of Almond Beautiful Shape trims 1.3 inches from the user’s thighs in just four weeks; topical use of Almond Beautiful Shape significantly slims the user’s thighs and buttocks; topical use of Almond Beautiful Shape significantly reduces cellulite; and topical use of Almond Shaping Delight significantly slims the body in just four weeks. The complaint also alleges that respondent represented, in various advertisements, that scientific tests prove that topical use of Almond Beautiful Shape trims 1.3 inches from the user’s thighs in just four weeks; scientific tests prove that topical use of Almond Beautiful Shape significantly reduces cellulite; and scientific tests prove that Almond Shaping Delight significantly slims the body in just four weeks. The consent order requires respondent to pay four hundred and fifty thousand dollars ($450,000) to the Commission to be used for equitable relief, including restitution, and any attendant expenses for the administration of such equitable relief. The order also prohibits respondent from making any representation that use of a drug or cosmetic reduces or eliminates cellulite or affects body fat or weight, unless the representation is non-misleading, and, at the time of making such representation, respondent possesses and relies upon competent and reliable scientific evidence that is sufficient in quality and quantity based on standards generally accepted in the relevant scientific fields, when considered in light of the entire body of relevant and reliable scientific evidence, to substantiate that the representation is true. Participants For the Commission: Matthew D. Gold and Evan Rose. For the Respondent: Richard P. Jacobson, Colucci & Umans; Georgia Ravitz, Arent Fox LLP; and Thomas Perrelli, Jenner & Block.

L’OCCITANE, INC. 673 Complaint COMPLAINT The Federal Trade Commission, having reason to believe that L’Occitane, Inc., 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 L’Occitane, Inc., is a New York corporation with its principal office or place of business at 1430 Broadway, Second Floor, New York, New York 10018. 2. Respondent has manufactured, advertised, labeled, offered for sale, sold, and distributed products to the public, including “Almond Beautiful Shape” and “Almond Shaping Delight.” Almond Beautiful Shape and Almond Shaping Delight are “drugs” and/or “cosmetics” 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. 4. Almond Beautiful Shape and Almond Shaping Delight are skin creams that contain almond extracts and other ingredients. Respondent promotes Almond Beautiful Shape and Almond Shaping Delight as able to slim and reshape the body. 5. Respondent disseminated or caused to be disseminated advertisements for Almond Beautiful Shape and Almond Shaping Delight, including but not necessarily limited to the attached Exhibits A to D. These advertisements contain the following statements:

a. Shape magazine advertisement (Exhibit A) Body Sculpting Solved with L’OCCITANE L’OCCITANE has harnessed nature’s secret, with body sculpting almond extracts cultivated in the south of France. We’ve teamed up with the Shaping Experts VOLUME 157 Complaint to bring you a firmer, smoother body… and it’s all just 4 weeks away! . . . .

Almond Shaping Delight 3 out of 4 women saw firmer, lifted skin.* This luxuriously lightweight massage gel instantly melts into the skin to help visibly {SCULPTING EXPERT} refine and sculpt the silhouette.

*Reported by 25 women after 4 weeks.

. . . .

Almond Beautiful Shape Trim 1.3 inches in just 4 weeks.* This ultra-fresh gel-cream helps to visibly reduce the appearance of cellulite, while smoothing and firming the skin.

*Centimetric loss measurement of thigh circumference.

{CELLULITE FIGHTER} b. Direct mail advertisement (Exhibit B) TIME TO SHAPE UP! NEW Almond Shaping Delight CLINICALLY PROVEN SLIMMING EFFECTIVENESS . . . .

A noticeably slimmer, firmer, you...

(in just 4 weeks!) L’OCCITANE, INC. 675 Complaint NEW! ALMOND SHAPING DELIGHT SCULPTING EXPERT 3 OUT OF 4 WOMEN SAW FIRMER, LIFTED SKIN.* This luxuriously lightweight massage gel instantly melts into the skin to help visibly refine and sculpt the silhouette. Almond bud extracts and almond proteins naturally slim, smooth and lift the skin’s surface. *Reported by 25 women after 4 weeks.

NEW! ALMOND BEAUTIFUL SHAPE CELLULITE FIGHTER TRIM 1.3 INCHES IN JUST 4 WEEKS.* Concentrated in a powerful combination of Almond and a NEW lemon micro-exfoliating extract, this ultrafresh gel-cream helps to visibly reduce the appearance of cellulite, while smoothing and firming the skin. *Centimetric loss measurement of thigh circumference.

c. Almond Beautiful Shape packaging (Exhibit C) This ultra-fresh gel-cream helps to visibly reduce the appearance of cellulite and to slim the thighs and buttocks, while smoothing and firming the skin.

. . . .

• ANTI-FAT STORAGE: slows the appearance of new fat cells on the thighs and buttocks with Peruvian liana, quinoa extract and carrot essential oil.

VOLUME 157 Complaint • FAT RELEASE: releases existing fat cells particularly with almond tree buds, rich in draining flavonoids, natural caffeine, immortelle, palmarosa and peppermint essential oils.

. . . .

Effectiveness clinically proven on the Beautiful Shape formula:

- Trims up to 3,3cm from the circumference of thighs - Cellulite is significantly reduced d. Almond Shaping Delight packaging (Exhibit D) This fresh massage gel instantly melts into the skin to contribute to visibly refine and reshape the silhouette, to resculpt and tone the body contours. . . . .

Slimming effectiveness clinically proven* . . . .

*25 women after 28 days 6. Through the means described in Paragraph 5, respondent has represented, directly or indirectly, expressly or by implication, that:

a. Topical use of Almond Beautiful Shape trims 1.3 inches from the user’s thighs in just four weeks; b. Topical use of Almond Beautiful Shape significantly slims the user’s thighs and buttocks;

c. Topical use of Almond Beautiful Shape significantly reduces cellulite; and L’OCCITANE, INC. 677 Complaint d. Topical use of Almond Shaping Delight significantly slims the body in just four weeks.

7. Through the means described in Paragraph 5, respondent has represented, expressly or by implication, that it possessed and relied upon a reasonable basis that substantiated the representations set forth in Paragraph 6, at the time the representations were made.

8. In truth and in fact, respondent did not possess and rely upon a reasonable basis that substantiated the representations set forth in Paragraph 6, at the time the representations were made. Therefore, the representation set forth in Paragraph 7 was, and is, false or misleading.

9. Through the means described in Paragraph 5, respondent has represented, directly or indirectly, expressly or by implication, that:

a. Scientific tests prove that topical use of Almond Beautiful Shape trims 1.3 inches from the user’s thighs in just four weeks;

b. Scientific tests prove that topical use of Almond Beautiful Shape significantly reduces cellulite; and c. Scientific tests prove that Almond Shaping Delight significantly slims the body in just four weeks. 10. In truth and in fact:

a. Scientific tests do not prove that topical use of Almond Beautiful Shape trims 1.3 inches from the user’s thighs in just four weeks;

b. Scientific tests do not prove that topical use of Almond Beautiful Shape significantly reduces cellulite; and c. Scientific tests do not prove that Almond Shaping Delight significantly slims the body in just four weeks. VOLUME 157 Complaint Among other things, the evidence relied on by respondent for its representations concerning Almond Beautiful Shape consisted primarily of results from a single unblinded, uncontrolled clinical trial. Moreover, respondent exaggerated the results of the trial; the average reported reduction in thigh circumference was less than one quarter of an inch, and only one participant out of fifty was reported to have achieved a reduction of 1.3 inches. The evidence relied on by respondent for its representation concerning Almond Shaping Delight consisted primarily of results from a single nonrandomized, unblinded, uncontrolled clinical trial. Therefore, the representations set forth in Paragraph 9 were, and are, false or misleading. 11. 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.

THEREFORE, the Federal Trade Commission this twentyseventh day of March, 2014, has issued this complaint against respondent.

By the Commission L’OCCITANE, INC. 679 Complaint Exhibit A Exhibit A: Shape magazine advertisement The Plan Peel off the layers of winter and reveal asleek new you just in time for Spring r Maryland Necicat Center.

wl witty Lhe:

positive. Learn to lighten up, and let build up. Replace each negetive theught with a and see what ¢ REFINE c_ our pier Jansuning 4 healthy, balanced dict and eliminating refined foods (white bread and fee, sugary Cereals and pastries) from your éiet may lower your overal body fat percentage and can help to reduce the appearance of unsightly dimples. The high fiber contest in whole grains also halps to treat and prevent cellulite, according to the University of negative, in with the go of the emotional Dost We offirrnation difference it mokees wn your state of mind.

x -JREFRESH A LYOUR LOOK G. 2 mom polished look by paring down your closet to essenticl pieces thar yeu can mix and matchto make an array of stylish outfits for every occasen, Multi-taskmng “warts” lke a white button down shit oF 4 neutral colorec cardigan will be easier to pair up than last year's trendy top, »F strong, toned muscles increase your mazabousm @nd burn calories more than cardio-only workouts, ‘walang or stag climbng, Incorporate core strengthening exercises and resistance train ng into ‘your Usual workout. Be sure to pay attention to your form so you get the bast results.

Exhibit A-1 VOLUME 157 Complaint Body Sculpting Solved with LOCCITANE LVOCCITANE has harnessed nature’s secret, with body sculpting al = extracts cultivated in the south of France. We've teamed up with the Experts to bring you a firmer, smoother body... and it’s all just + se 35 a clearser or a shavirg ase Lo [dave shins siley, supple oo 96% of women saw ard reso, for anpiication of your targated shaping exper x2 TRS ebety. maltfashirg Doery creer tir clailyuse nouns es SMOOTHER Almond Beautiful Shape — Trim 1.3 inches in just 4 weeks.“ Shaping Delight — TRYS ultra-fiestt Gai-creee) RAPIDS ter veSRety = iIJoutof4 womensaw rectice the sppecranoe of cel hilite, wile asp es ariencort smoething ard timsing the sii, timuriousty light (Comtrenn: ines prempereient ol Sd eres SCULPTING EXPERT mas ot LOY ORS ft he wal ably CELLULIT FIGH Mark Your Calendar Exclusive event with VOCCITANE and SHAPE! WHEN: Lhursday, April 5th WEEAE: Enjoy an exclusive party with expert lips and detoxifying beauty treatments. Plus, receive a special gift with any $25 purchase.

) jf WHERE: To find an \* event near you, visil usa.loccilane.com ShapeUpEvent Exhibit A-2 = TINATAOUd NA ZLOZ w6il UUW) Such pue sanbynog uy f ss3N3AL03333 DNINWNs N3AOUd ATIVOINIT9 L’OCCITANE, INC.

Complaint Exhibit B a 1y6i1aq Buldeys puowyy aN idf JdVHS OL SNL JUIWISHAIAPH OU PIII Fy VIqIYX | HANV.LIDOIO AI Exhibit B-1 VOLUME 157 Complaint rene oy Lies deusetony Ong 179 pet = suse mA Jo exereaccoP eM af eentorsg 2c Le NoEPEAE eae Eoneoud a) ~ att SH >. 7297711V 20 vs WEWOM 40 10g COM) j ~(jsyaam y jsnl ty) "MOA JWI ‘JOWLWIIS Ajqeaonou Y Exhibit B-2 £-@ uqiyx3 THE TRUE STORY OF ALMOND BODY CARE Attu cuore favors, Armond body care combines the | Provence with incredibly firming and zits. Just in time for spring, you can now reves! fin ¢ POCCITANE EN PROVENCE CONCENTRE DE LAIT This multi-tasking bedy crea nourishes, drms and tones the skin with the help of amond protains and siicium. “Cotramer test comucted Ont £2 worms ate DE days of va. yure,duros ‘ONI “ANV.LION0¢7 €89 VOLUME 157 Complaint ¥erg0ND OSS BOG my GLE - Sie Ubemjad JanEp SSbepy YaLSVVLLSOd MONITAOMd NO INVLID9O.1 mi, PERL) Oh age ss jaan r 4 20g jose YONG ALE LIM ? ‘ ad cE F 30 onbynog 3Nv100071 2 PSA ™ NOA HOS ISNT SAISNTOXY VHD NY 0S S130 / \ SUOLU 20 SOF 40 eseyound Ave yy fenyiy dy}-adeys 4319 SAISMTOX HNO Exhibit B-4 L’OCCITANE, INC.

Complaint Exhibit C Exhibit C: Almond Beautiful Shape packaging OURNES EN 0d, SEAT SH NOUVELLE FOUMIBE NEW FORMULA L'OCCITANE EN FRO VENCE ‘20nd ‘7h, F it é is is j Ziyi He ae ee pe he Ons frm pe + ae se sD Pe een Var hat Aa a te dee @ cia eras arte Ae Shares vo san eeve zeit arp Sis en Peden” 16 Nate Uap fe Bee Chiy wie Or pores (aera mae To Let taeaker barge name che me GRO Tee gs Fapcake Reagan! eyrdina tar Do Mey ope diocnten harce! Prert nostinne b francs. Exhibit C-1 VOLUME 157 Decision and Order Exhibit D DECISION AND ORDER The Federal Trade Commission (“Commission”), having initiated an investigation of certain acts and practices of the respondent named in the caption hereof, and the respondent L’OCCITANE, INC. 687 Decision and Order having been furnished thereafter with a copy of a draft of a complaint which the Western Region-San Francisco proposed to present to the Commission for its consideration and which, if issued, would charge the respondent with violations of the Federal Trade Commission Act; and The respondent, its attorney, and counsel for the Commission having thereafter executed an Agreement Containing Consent Order (“consent agreement”), which includes: a statement by respondent that it neither admits nor denies any of the allegations in the draft complaint except as specifically stated in the consent agreement, and, only for purposes of this action, admits the facts necessary to establish jurisdiction; 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 Federal Trade Commission Act, and that a 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 thirty (30) days for the receipt and consideration of public comments, and having duly considered the comments received from an interested person pursuant to Commission Rule 2.34, 16 C.F.R. § 2.34, now in further conformity with the procedure prescribed in Commission Rule 2.34, the Commission hereby issues its complaint, makes the following jurisdictional findings and enters the following order:

1. Respondent L’Occitane, Inc., is a New York corporation with its principal office or place of business at 1430 Broadway, Second Floor, New York, New York 10018.

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. VOLUME 157 Decision and Order ORDER DEFINITIONS For purposes of this order, the following definitions shall apply:

A. Unless otherwise specified, “respondent” shall mean L’Occitane, Inc., a corporation, its successors and assigns, and its officers, agents, representatives, and employees.

B. “Adequate and well-controlled human clinical study” means a human clinical study that is randomized, double-blind, placebo controlled, and conducted by persons qualified by training and experience to conduct such study.

C. “Commerce” shall mean as defined in Section 4 of the Federal Trade Commission Act, 15 U.S.C. § 44. D. “Covered Product” means any drug or cosmetic. E. “Drug” and “cosmetic” mean as defined in Section 15 of the FTC Act, 15 U.S.C. § 55.

F. “Essentially Equivalent Product” means a product that contains the identical ingredients, except for inactive ingredients (e.g., binders, colors, fillers, excipients), in the same form and dosage, and with the same route of administration (e.g., orally, sublingually), as the Covered Product; provided that the Covered Product may contain additional ingredients if reliable scientific evidence generally accepted by experts in the field demonstrates that the amount and combination of additional ingredients is unlikely to impede or inhibit the effectiveness of the ingredients in the Essentially Equivalent Product.

L’OCCITANE, INC. 689 Decision and Order I.

IT IS ORDERED that respondent, directly or through any corporation, partnership, subsidiary, division, trade name, or other device, in connection with the manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of Almond Beautiful Shape, Almond Shaping Delight, or any other topically applied product, in or affecting commerce, shall not represent, in any manner, expressly or by implication, including through the use of a product name, endorsement, depiction, or illustration, that use of such product causes substantial weight or fat loss or a substantial reduction in body size. II.

IT IS FURTHER ORDERED that respondent, directly or through any corporation, partnership, subsidiary, division, trade name, or other device, in connection with the manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of any Covered Product, in or affecting commerce, shall not make any representation, other than representations covered under Part I of this order, in any manner, expressly or by implication, including through the use of a product name, endorsement, depiction, or illustration, that use of such product causes weight or fat loss or a reduction in body size, unless the representation is non-misleading, and, at the time it is made, respondent possesses and relies upon competent and reliable scientific evidence that substantiates that the representation is true. For purposes of this Part, competent and reliable scientific evidence shall consist of at least two adequate and well-controlled human clinical studies of the Covered Product, or of an Essentially Equivalent Product, conducted by different researchers, independently of each other, that conform to acceptable designs and protocols and whose results, when considered in light of the entire body of relevant and reliable scientific evidence, are sufficient to substantiate that the representation is true. Respondent shall have the burden of proving that a product satisfies the definition of Essentially Equivalent Product.

VOLUME 157 Decision and Order III.

IT IS FURTHER ORDERED that respondent, directly or through any corporation, partnership, subsidiary, division, trade name, or other device, in connection with the manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of any Covered Product, in or affecting commerce, shall not make any representation, other than representations covered under Parts I and II of this order, in any manner, expressly or by implication, including through the use of a product name, endorsement, depiction, or illustration, that use of such product reduces or eliminates cellulite or affects body fat or weight, unless the representation is non-misleading, and, at the time of making such representation, the respondent possesses and relies upon competent and reliable scientific evidence that is sufficient in quality and quantity based on standards generally accepted in the relevant scientific fields, when considered in light of the entire body of relevant and reliable scientific evidence, to substantiate that the representation is true. For purposes of this Part, competent and reliable scientific evidence means tests, analyses, research, or studies that have been conducted and evaluated in an objective manner by qualified persons, and that are generally accepted in the profession to yield accurate and reliable results.

IV.

IT IS FURTHER ORDERED that respondent, directly or through any corporation, partnership, subsidiary, division, trade name, or other device, in connection with the manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of any product in or affecting commerce, shall not misrepresent, or assist others in misrepresenting, in any manner, expressly or by implication, including through the use of any product name or endorsement:

A. The existence, contents, validity, results, conclusions, or interpretations of any test, study, or research; or B. That the benefits of the product are scientifically proven.

L’OCCITANE, INC. 691 Decision and Order V.

IT IS FURTHER ORDERED that nothing in this order shall prohibit respondent from making any representation for: A. Any drug that is permitted in the labeling for such drug under any tentative final or final standard promulgated by the Food and Drug Administration, or under any new drug application approved by the Food and Drug Administration; and B. 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. VI.

IT IS FURTHER ORDERED that respondent shall, within thirty (30) days after the date of entry of this order, provide to the Commission a searchable electronic file containing the name and contact information of all consumers who purchased Almond Beautiful Shape or Almond Shaping Delight from March 19, 2012 through the date of entry of this order, to the extent it has such information in its possession or control, including information available upon request from franchisees or others. Such file: (1) shall include each consumer’s name and address, the product(s) purchased, the total amount of moneys paid less any amount credited for returns or refunds, the date(s) of purchase, and, if available, the consumer’s telephone number and email address; (2) shall be updated through the National Change of Address database; and (3) shall be accompanied by a sworn affidavit attesting to its accuracy.

VII.

IT IS FURTHER ORDERED that respondent shall pay to the Federal Trade Commission the sum of four hundred fifty thousand dollars ($450,000). This payment shall be made in the following manner:

VOLUME 157 Decision and Order A. The payment shall be made by electronic funds transfer within ten (10) days after the date that this order becomes final and in accordance with instructions provided by a representative of the Federal Trade Commission.

B. In the event of default on any obligation to make payment under this order, interest, computed pursuant to 28 U.S.C. § 1961(a), shall accrue from the date of default to the date of payment. In the event such default continues for ten (10) calendar days beyond the date that payment is due, the entire amount shall immediately become due and payable.

C. All funds paid to the Commission pursuant to this order shall be deposited into an account administered by the Commission or its agents to be used for equitable relief, including restitution, and any attendant expenses for the administration of such equitable relief. In the event that direct redress to consumers is wholly or partially impracticable or funds remain after the redress to consumers (which shall be the first priority for dispensing the funds set forth above) is completed, the Commission may apply any remaining funds for such other equitable relief (including consumer information remedies) as it determines to be reasonably related to respondent’s practices alleged in the complaint. Any funds not used for such equitable relief shall be deposited in the United States Treasury as disgorgement. Respondent shall be notified as to how the funds are distributed, but shall have no right to challenge the Commission’s choice of remedies under this Part. Respondent shall have no right to contest the manner of distribution chosen by the Commission. No portion of any payment under this Part shall be deemed a payment of any fine, penalty, or punitive assessment. D. Respondent relinquishes all dominion, control, and title to the funds paid to the fullest extent permitted by law. Respondent shall make no claim to or demand for L’OCCITANE, INC. 693 Decision and Order return of the funds, directly or indirectly, through counsel or otherwise.

E. Respondent agrees that the facts as alleged in the complaint filed in this action shall be taken as true without further proof in any bankruptcy case or subsequent civil litigation pursued by the Commission to enforce its rights to any payment or money judgment pursuant to this order, including but not limited to a nondischargeability complaint in any bankruptcy case. Respondent further agrees that the facts alleged in the complaint establish all elements necessary to sustain an action by the Commission pursuant to Section 523(a)(2)(A) of the Bankruptcy Code, 11 U.S.C. § 523(a)(2)(A), and that this order shall have collateral estoppel effect for such purposes. F. In accordance with 31 U.S.C. § 7701, respondent is hereby required, unless it has done so already, to furnish to the Commission its taxpayer identifying number, which shall be used for the purposes of collecting and reporting on any delinquent amount arising out of respondent’s relationship with the government.

G. Proceedings instituted under this Part are in addition to, and not in lieu of, any other civil or criminal remedies that may be provided by law, including any other proceedings the Commission may initiate to enforce this order.

VIII.

IT IS FURTHER ORDERED that respondent L’Occitane, Inc., 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 reasonable notice and request, make available to the Federal Trade Commission for inspection and copying:

A. All advertisements and promotional materials containing the representation;

VOLUME 157 Decision and Order 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.

IX.

IT IS FURTHER ORDERED that respondent L’Occitane, Inc., and its successors and assigns shall deliver a copy of this order to all current and, for the next three (3) years, all future principals, officers, directors, and other employees having primary responsibilities with respect to the subject matter of this order, and shall secure from each such person a signed and dated statement acknowledging receipt of the order. Respondent L’Occitane, Inc., and its successors and assigns shall deliver this order to current personnel within thirty (30) days after the date of service of this order, and to future personnel within thirty (30) days after the person assumes such position or responsibilities. X.

IT IS FURTHER ORDERED that respondent L’Occitane, Inc., 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. Unless otherwise directed by a representative of the L’OCCITANE, INC. 695 Decision and Order Commission, all notices required by this Part shall be sent by overnight courier (not the U.S. Postal Service) to the Associate Director of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580, with the subject line: In the Matter of L’Occitane, Inc., FTC File Number 122 3115. Provided, however, that, in lieu of overnight courier, notices may be sent by first-class mail, but only if an electronic version of such notices is contemporaneously sent to the Commission at [email protected]. XI.

IT IS FURTHER ORDERED that respondent L’Occitane, Inc., and its successors and assigns shall, within sixty (60) days after the date of service of this order, file with the Commission a true and accurate report, in writing, setting forth in detail the manner and form of its own compliance with this order. Within ten (10) days of receipt of written notice from a representative of the Commission, they shall submit additional true and accurate written reports.

XII.

This order will terminate on March 27, 2034, 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 VOLUME 157 Analysis to Aid Public Comment 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. By the Commission.

ANALYSIS OF CONSENT ORDER TO AID PUBLIC COMMENT The Federal Trade Commission (“FTC” or “Commission”) has accepted, subject to final approval, an Agreement Containing Consent Order from L’Occitane, Inc. (“respondent”). The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and the comments received, and will decide whether it should withdraw from the agreement and take appropriate action or make final the agreement’s proposed order. This matter involves the advertising, marketing, and sale of “Almond Beautiful Shape” and “Almond Shaping Delight” (collectively, “the almond products”) by respondent. Respondent has marketed the almond products to consumers through its retail stores and website, and through third-party retail outlets. The almond products are skin creams that contain almond extracts and other ingredients. According to the FTC complaint, respondent promoted the almond products as able to slim and reshape the body.

Specifically, the FTC complaint alleges that respondent represented, in various advertisements, that topical use of Almond Beautiful Shape trims 1.3 inches from the user’s thighs in just four weeks; topical use of Almond Beautiful Shape significantly L’OCCITANE, INC. 697 Analysis to Aid Public Comment slims the user’s thighs and buttocks; topical use of Almond Beautiful Shape significantly reduces cellulite; and topical use of Almond Shaping Delight significantly slims the body in just four weeks. The complaint alleges that these claims are unsubstantiated and thus violate the FTC Act. The complaint also alleges that respondent represented, in various advertisements, that scientific tests prove that topical use of Almond Beautiful Shape trims 1.3 inches from the user’s thighs in just four weeks; scientific tests prove that topical use of Almond Beautiful Shape significantly reduces cellulite; and scientific tests prove that Almond Shaping Delight significantly slims the body in just four weeks. The complaint alleges that these claims are false and thus violate the FTC Act.

The proposed consent order contains provisions designed to prevent respondent from engaging in similar acts or practices in the future. Specifically, Part I prohibits respondent from claiming that the almond products or any other topically applied product causes substantial weight or fat loss or a substantial reduction in body size. Part I of the order is designed to fence in respondent by ensuring that extreme, scientifically unfeasible claims will not be made in the future.

Part II addresses the slimming claims at issue in this matter. It covers any representation, other than representations covered under Part I, that a drug or cosmetic causes weight or fat loss or a reduction in body size. Part II prohibits respondent from making such representations unless the representation is non-misleading, and, at the time of making such representation, respondent possesses and relies upon competent and reliable scientific evidence that substantiates that the representation is true. For purposes of Part II, the proposed order defines “competent and reliable scientific evidence” as at least two randomized, doubleblind, placebo-controlled human clinical studies that are conducted by independent, qualified researchers and that conform to acceptable designs and protocols, and whose results, when considered in light of the entire body of relevant and reliable scientific evidence, are sufficient to substantiate that the representation is true.

Part III of the proposed order prohibits respondent from making any representation, other than representations covered VOLUME 157 Analysis to Aid Public Comment under Parts I or II, that use of a drug or cosmetic reduces or eliminates cellulite or affects body fat or weight, unless the representation is non-misleading, and, at the time of making such representation, respondent possesses and relies upon competent and reliable scientific evidence that is sufficient in quality and quantity based on standards generally accepted in the relevant scientific fields, when considered in light of the entire body of relevant and reliable scientific evidence, to substantiate that the representation is true. For purposes of Part III, the proposed order defines “competent and reliable scientific evidence” as tests, analyses, research, or studies that have been conducted and evaluated in an objective manner by qualified persons, and that are generally accepted in the profession to yield accurate and reliable results.

Part IV of the proposed order addresses the allegedly false claims that scientific tests prove that topical use of Almond Beautiful Shape trims 1.3 inches from the user’s thighs in just four weeks; scientific tests prove that topical use of Almond Beautiful Shape significantly reduces cellulite; and scientific tests prove that Almond Shaping Delight significantly slims the body in just four weeks. Part IV prohibits respondent, when advertising any product, from misrepresenting the existence, contents, validity, results, conclusions, or interpretations of any test, study, or research, or misrepresenting that the benefits of the product are scientifically proven.

Part V of the proposed order states that the order does not prohibit respondent from making representations for any drug that are permitted in labeling for that drug under any tentative or final standard promulgated by the Food and Drug Administration (“FDA”), or under any new drug application approved by the FDA. This part of the proposed order also states that the order does not prohibit respondent from making representations for any product that are specifically permitted in labeling for that product by regulations issued by the FDA under the Nutrition Labeling and Education Act of 1990.

Part VII of the proposed order requires respondent to pay four hundred and fifty thousand dollars ($450,000) to the Commission to be used for equitable relief, including restitution, and any attendant expenses for the administration of such equitable relief. L’OCCITANE, INC. 699 Analysis to Aid Public Comment To facilitate the payment of redress, Part VI of the proposed order requires L’Occitane to provide to the Commission a searchable electronic file containing the name and contact information of all consumers who purchased the almond products from March 19, 2012 through the date of entry of the order. Parts VIII, IX, X, and XI of the proposed order require respondent to keep copies of relevant advertisements and materials substantiating claims made in the advertisements; to provide copies of the order to its personnel; to notify the Commission of changes in corporate structure that might affect compliance obligations under the order; and to file compliance reports with the Commission. Part XII provides that the order will terminate after twenty (20) years, with certain exceptions. 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 their terms in any way.

VOLUME 157 Complaint