[Federal Register Volume 62, Number 55 (Friday, March 21, 1997)]
[Notices]
[Pages 13619-13620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7262]


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FEDERAL TRADE COMMISSION
[File No. 962-3175]


Gerber Products Company; Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: In settlement of alleged violations of federal law prohibiting 
unfair or deceptive acts or practices and unfair methods of 
competition, this consent agreement, accepted subject to final 
Commission approval, would prohibit, among other things, the baby food 
company from representing the extent to which doctors or other health

[[Page 13620]]

professionals recommend baby and toddler foods or from representing any 
recommendation or endorsement of these products unless it has competent 
and reliable evidence that substantiates the claim. Gerber also would 
be prohibited from misrepresenting any survey or research. The 
complaint accompanying the consent agreement alleges that Gerber 
claimed that four out of five pediatricians recommend Gerber baby food, 
when in fact, the study on which Gerber relied showed that only 12 
percent of the pediatricians surveyed recommended Gerber.

DATES: Comments must be received on or before May 20, 1997.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 6th St. and Pa. Ave., N.W., Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT: Anne Maher, Federal Trade Commission, 
S-4002, 6th St. and Pa. Ave., N.W., Washington, D.C. 20580. (202) 326-
2987. Rosemary Rosso, Federal Trade Commission, S-4002, 6th St. and Pa. 
Ave., NW., Washington, D.C. 20580. (202) 326-2174.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46, and Section 2.34 of 
the Commission's Rules of Practice (16 CFR 2.34), notice is hereby 
given that the above-captioned consent agreement containing a consent 
order to cease and desist, having been filed with and accepted, subject 
to final approval, by the Commission, has been placed on the public 
record for a period of sixty (60) days. The following Analysis to Aid 
Public Comment describes the terms of the consent agreement, and the 
allegations in the accompanying complaint. An electronic copy of the 
full text of the consent agreement package can be obtained from the 
Commission Actions section of the FTC Home Page (for March 12, 1997), 
on the World Wide Web, at ``http://www.ftc.gov/os/actions/htm.'' A 
paper copy can be obtained from the FTC Public Reference Room, Room H-
130, Sixth Street and Pennsylvania Avenue, N.W., Washington, D.C. 
20580, either in person or by calling (202) 326-3627. Public comment is 
invited. Such comments or views will be considered by the Commission 
and will be available for inspection and copying at its principal 
office in accordance with Section 4.9(b)(6)(ii) of the Commission's 
Rules of Practice (16 CFR 4.9(b)(6)(ii)).

Analysis of Proposed Consent Order To Aid Public Comment

    The Federal Trade Commission has accepted an agreement to a 
proposed consent order from Gerber Products Company (``Gerber'').
    The proposed consent order has been placed on the public record for 
sixty (60) days for reception of comments by interested persons. 
Comments received during this period will become part of the public 
record. After sixty (60) days, the Commission will again review the 
agreement and the comments received and will decide whether it should 
withdraw from the agreement or make final the agreement's proposed 
order.
    The Commission's complaint in this matter charges Gerber with 
engaging in deceptive practices in connection with the advertising of 
Gerber baby and toddler foods. The television, radio and print 
advertisements at issue expressly represented that ``4 out of 5 
pediatricians who recommend baby food recommend Gerber.'' According to 
the complaint, the advertisements falsely represented that competent 
and reliable studies or surveys supported that claim. The complaint 
explains that, in the survey relied upon by Gerber, 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, only 76 recommend specific brands, and 67 of those 
recommended Gerber. Thus, only 67 of the 408 pediatricians who 
recommend baby food, or approximately 16 percent, recommend Gerber to 
their patients.
    The complaint also alleges that the advertising at issue made an 
implied claim that approximately 4 out of 5 pediatricians recommend 
Gerber. Because this claim is broader than the claim alleged above, the 
base is 562, the total number of pediatricians surveyed who answered 
the relevant questions. Of these 562 pediatricians, 67, or 
approximately 12 percent, recommended Gerber. Therefore, according to 
the complaint, this claim is unsubstantiated.
    The proposed consent order contains provisions designed to remedy 
the violations charged and to prevent Gerber from engaging in similar 
acts and practices in the future.
    Part I of the order requires Gerber not to make any representation 
about the extent to which doctors or other health, nutrition, child 
care, or medical professionals recommend baby or toddler food, or about 
the recommendation, approval, or endorsement of such products by any 
health, nutrition, child care, or medical professional, profession, 
group or other such entity, unless it possesses competent and reliable 
evidence, which when appropriate must be competent and reliable 
scientific evidence, that substantiates the representation.
    Part II prohibits Gerber, in connection with the manufacturing, 
labeling, advertising, promotion, offering for sale, sale or 
distribution of any baby or toddler food, from misrepresenting the 
existence, contents, validity, results, conclusion or interpretations 
of any survey, test, study, or research. The order does not prohibit 
Gerber from making truthful, non-misleading statements about survey 
results.
    Part III provides that representations that would be specifically 
permitted in food labeling, under regulations issued 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, are not prohibited by the 
order.
    Part IV requires Gerber to maintain copies of certain materials 
relating to advertisements covered by the order and documents relating 
to substantiation of advertisements covered by the order. Part V 
requires Gerber to distribute copies of the order to certain current 
and future officers and employees of the company. Part VI requires 
Gerber to notify the Commission of any changes in the corporate 
structure that might affect compliance with the order. Part VII 
requires Gerber to file with the Commission one or more reports 
detailing compliance with the order. Part VIII provides that the order 
will terminate after 20 years under certain circumstances.
    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 in any 
way their terms.
Donald S. Clark,
Secretary.
[FR Doc. 97-7262 Filed 3-20-97; 8:45 am]
BILLING CODE 6750-01-M