16210 Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Notices 

of bismuth vanadate could not achieve 

the same colors and performance levels 

in their products without it. Thus, there 

are no substitute products that 

customers of bismuth vanadate could 

turn to even in the face of a significant 

price increase. 

Indanthrone blue is a high 

performance pigment that imparts a 

blue coloration with a tinge of red. 

Because of its durability and light 

fastness, indanthrone blue is used 

primarily in automotive coatings. 

Similar to bismuth vanadate, no other 

pigment offers the same combination of 

unique color and high performance 

characteristics that indanthrone blue 

provides and customers of indanthrone 

blue could not achieve the same colors 

and performance levels in their 

products without it. Thus, there are no 

substitute products that customers of 

indanthrone blue could turn to even if 

faced with a significant price increase. 

The Complaint alleges that the 

relevant geographic market in which to 

analyze the anticompetitive effects of 

the proposed acquisition is the world. 

Transportation costs and technical 

barriers to worldwide shipment of the 

relevant products are insignificant. As a 

result, several pigment suppliers 

manufacture these products in a single 

location and ship them worldwide. For 

example, BASF and Ciba supply the 

relevant products for their customers 

worldwide from their production 

facilities in Europe. 

The Complaint further alleges that the 

relevant markets are highly 

concentrated. In the bismuth vanadate 

market, the proposed transaction would 

reduce the number of significant players 

in that market from four to three and the 

combined entity would have a market 

share of approximately 60 percent based 

on sales. The market for indanthrone 

blue is also highly concentrated with 

BASF and Ciba constituting two of only 

three significant suppliers. In that 

market, the combined entity’s market 

share would be approximately 56 

percent based on sales. By eliminating 

competition between BASF and Ciba in 

the relevant markets, the proposed 

transaction would allow the combined 

firm to unilaterally exercise market 

power, as well as increase the likelihood 

of coordinated interaction among the 

remaining suppliers. As a result, the 

proposed transaction would increase the 

likelihood that purchasers of bismuth 

vanadate and indanthrone blue would 

be forced to pay higher prices for these 

products and that innovation and 

service in these markets would decline. 

Entry into either relevant market is 

not likely and would not be timely or 

sufficient to deter or counteract the 

anticompetitive effects that would result 

from the proposed merger. It would take 

a new entrant well over two years to 

complete all of the requisite steps for 

entry, including: researching and 

developing the pigment technology; 

building a manufacturing facility; and 

passing the rigorous qualification testing 

required to get customer approval. 

Additionally, new entry into either the 

bismuth vanadate or indanthrone blue 

markets is unlikely to occur because the 

capital investment to become a viable 

supplier is high relative to the limited 

sales opportunities available to new 

entrants. 

IV. Terms of the Proposed Order 

The proposed Consent Agreement 

effectively remedies the proposed 

merger’s anticompetitive effects in the 

markets for bismuth vanadate and 

indanthrone blue pigments. BASF is 

required to divest assets used to 

research, develop, manufacture, and sell 

those products. The divested assets will 

permit the acquirer to become a viable 

competitor in the relevant markets. 

The assets to be divested include 

Ciba’s bismuth vanadate production 

assets which are located in Europe, or 

provides a mechanism for, at the 

acquirer’s option, production to be 

relocated to the acquirer’s production 

facilities. More specifically, BASF can 

either: (1) divest the Ciba bismuth 

vanadate production facility, (2) lease 

the production facility to the acquirer, 

or (3) enter into a tolling agreement that 

provides sufficient time for the acquirer 

to begin production at its own facilities 

and to qualify that production with 

customers. The indanthrone blue 

production assets will be used to 

produce that product pursuant to a 

tolling arrangement at the Ciba facilities 

until the acquirer of those assets is 

prepared to shift production to its own 

facilities. All tangible assets and 

intellectual property used to produce 

the relevant products will also be 

divested. Several credible acquirers 

have expressed interest in purchasing 

the assets to be divested. 

The provisions ordering the two 

divestitures further include ancillary 

relief such as supply agreements, 

protections for confidential information, 

assistance in hiring of key employees, 

and the appointment of a monitor to 

oversee the divestiture process to ensure 

that the acquirer, or acquirers, of the 

relevant assets will be able to effectively 

compete in the research, development, 

manufacture, and sale of bismuth 

vanadate and indanthrone blue 

pigments. A final Order to Maintain 

Assets has also been issued. 

The proposed Consent Agreement 

includes a provision that allows the 

Commission to appoint an interim 

monitor to ensure that BASF 

expeditiously complies with all of its 

obligations and performs all of its 

responsibilities as required by the 

Commission’s Decision and Order. If 

appointed, the interim monitor would 

be required to file periodic reports with 

the Commission to ensure that the 

Commission remains informed about 

the status of the divestitures and the 

efforts being made to accomplish the 

divestitures. 

Finally, the Consent Agreement 

contains provisions that allow the 

Commission to appoint a divestiture 

trustee to divest the assets that are the 

subject of the Commission’s Decision 

and Order if BASF fails to divest the 

designated assets within six (6) months 

after the Consent Agreement is accepted 

by the Commission for Public Comment. 

To ensure that the Commission remains 

informed about the status of the 

proposed divestitures and the transfer of 

the assets, the proposed Consent 

Agreement requires BASF to file reports 

with the Commission periodically until 

the divestitures and transfers are 

accomplished. 

The purpose of this analysis is to 

facilitate public comment on the 

proposed Decision and Order. This 

analysis is not intended to constitute an 

official interpretation of the Consent 

Agreement and the proposed Decision 

and Order. 

By direction of the Commission. 

Richard C. Donohue, 

Acting Secretary. 

[FR Doc. E9–8203 Filed 4–8–09: 8:45 am] 

BILLING CODE 6750–01–S 

FEDERAL TRADE COMMISSION 

[Docket No. 9328] 

Native Essence Herb Company, et al.; 

Analysis of Proposed Consent Order 

to Aid Public Comment 

AGENCY: Federal Trade Commission. 

ACTION: Proposed Consent Agreement. 

SUMMARY: The consent agreement in this 

matter settles alleged violations of 

federal law prohibiting unfair or 

deceptive acts or practices or unfair 

methods of competition. The attached 

Analysis to Aid Public Comment 

describes both the allegations in the 

complaint and the terms of the consent 

order—embodied in the consent 

agreement—that would settle these 

allegations. 


dwashington3 on PROD1PC60 with NOTICES
Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Notices 16211 

1 FTC Rule 4.2(d), 16 CFR 4.2(d). The comment 

must be accompanied by an explicit request for 

confidential treatment, including the factual and 

legal basis for the request, and must identify the 

specific portions of the comment to be withheld 

from the public record. The request will be granted 

or denied by the Commission’s General Counsel, 

consistent with applicable law and the public 

interest. See FTC Rule 4.9(c), 16 CFR 4.9(c). 

DATES: Comments must be received on 

or before May 4, 2009. 

ADDRESSES: Interested parties are 

invited to submit written comments 

electronically or in paper form. 

Comments should refer to‘‘Native 

Essence, Docket No. 9328’’ to facilitate 

the organization of comments. Please 

note that your comment—including 

your name and your state—will be 

placed on the public record of this 

proceeding, including on the publicly 

accessible FTC website, at (http:// 

www.ftc.gov/os/publiccomments.shtm). 

Because comments will be made 

public, they should not include any 

sensitive personal information, such as 

an individual’s Social Security Number; 

date of birth; driver’s license number or 

other state identification number, or 

foreign country equivalent; passport 

number; financial account number; or 

credit or debit card number. Comments 

also should not include any sensitive 

health information, such as medical 

records or other individually 

identifiable health information. In 

addition, comments should not include 

any ‘‘[t]rade secret or any commercial or 

financial information which is obtained 

from any person and which is privileged 

or confidential. . . .,’’ as provided in 

Section 6(f) of the FTC Act, 15 U.S.C. 

46(f), and Commission Rule 4.10(a)(2), 

16 CFR 4.10(a)(2). Comments containing 

material for which confidential 

treatment is requested must be filed in 

paper form, must be clearly labeled 

‘‘Confidential,’’ and must comply with 

FTC Rule 4.9(c).1

Because paper mail addressed to the 

FTC is subject to delay due to 

heightened security screening, please 

consider submitting your comments in 

electronic form. Comments filed in 

electronic form should be submitted by 

using the following weblink: (http:// 

secure.commentworks.com/ftcNativeEssence) (and following the 

instructions on the web-based form). To 

ensure that the Commission considers 

an electronic comment, you must file it 

on the web-based form at the weblink: 

(http://secure.commentworks.com/ftcNativeEssence). If this Notice appears at 

(http://www.regulations.gov/search/ 

index.jsp), you may also file an 

electronic comment through that 

website. The Commission will consider 

all comments that regulations.gov 

forwards to it. You may also visit the 

FTC website at http://www.ftc.gov to 

read the Notice and the news release 

describing it. 

A comment filed in paper form 

should include the ‘‘Native Essence, et 

al., Docket No. 9328‘‘ reference both in 

the text and on the envelope, and 

should be mailed or delivered to the 

following address: Federal Trade 

Commission, Office of the Secretary, 

Room H-135, 600 Pennsylvania Avenue, 

NW, Washington, DC 20580. The FTC is 

requesting that any comment filed in 

paper form be sent by courier or 

overnight service, if possible, because 

U.S. postal mail in the Washington area 

and at the Commission is subject to 

delay due to heightened security 

precautions. 

The Federal Trade Commission Act 

(‘‘FTC Act’’) and other laws the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding as 

appropriate. The Commission will 

consider all timely and responsive 

public comments that it receives, 

whether filed in paper or electronic 

form. Comments received will be 

available to the public on the FTC 

website, to the extent practicable, at 

(http://www.ftc.gov/os/ 

publiccomments.shtm). As a matter of 

discretion, the Commission makes every 

effort to remove home contact 

information for individuals from the 

public comments it receives before 

placing those comments on the FTC 

website. More information, including 

routine uses permitted by the Privacy 

Act, may be found in the FTC’s privacy 

policy, at (http://www.ftc.gov/ftc/ 

privacy.shtm). 

FOR FURTHER INFORMATION CONTACT: 

Erika Wodinsky, Western Region, 600 

Pennsylvania Avenue, NW, Washington, 

D.C. 20580, (415) 848-5100. 

SUPPLEMENTARY INFORMATION: Pursuant 

to section 6(f) of the Federal Trade 

Commission Act, 38 Stat. 721, 15 U.S.C. 

46(f), and § 3.25(f) the Commission 

Rules of Practice, 16 CFR 3.25(f), 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 thirty (30) days. The following 

Analysis to Aid Public Comment 

describes the terms of the consent 

agreement, and the allegations in the 

complaint. An electronic copy of the 

full text of the consent agreement 

package can be obtained from the FTC 

Home Page (for April 3, 2009), on the 

World Wide Web, at (http:// 

www.ftc.gov/os/2009/04/index.htm). A 

paper copy can be obtained from the 

FTC Public Reference Room, Room 130- 

H, 600 Pennsylvania Avenue, NW, 

Washington, D.C. 20580, either in 

person or by calling (202) 326-2222. 

Public comments are invited, and may 

be filed with the Commission in either 

paper or electronic form. All comments 

should be filed as prescribed in the 

ADDRESSES section above, and must be 

received on or before the date specified 

in the DATES section. 

Analysis of Agreement Containing 

Consent Order to Aid Public Comment 

The Federal Trade Commission has 

accepted, subject to final approval, an 

agreement containing a consent order 

from Native Essence Herb Company, a 

corporation, Mark J. Hershiser, 

individually, d/b/a Native Essence Herb 

Company, and as an officer of the 

corporation, and Marianne Hershiser, 

individually, d/b/a Native Essence Herb 

Company, and as an officer of the 

corporation (‘‘respondents’’). 

The proposed consent order has been 

placed on the public record for thirty 

days for reception of comments by 

interested persons. Comments received 

during this period will become part of 

the public record. After thirty 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. 

This matter concerns the respondents’ 

advertising and promotion of Native 

Essense (Rene Caisse) Formula tea and 

extract, Native Essense Plus tea and 

extract, Native Essense with Cat’s Claw 

tea and extract, chaparral herb, Maitake 

mushroom extract, and Mai-T 

Mushroom Plus Formula extract. The 

complaint alleges that respondents have 

made a number of deceptive claims 

regarding the efficacy of these products 

in the prevention, treatment or cure of 

cancer. 

Specifically, the Commission’s 

complaint alleges that respondents have 

claimed that their Native Essense 

Original Formula, Native Essense Plus, 

and Native Essense with Cat’s Claw 

products are effective in treating and 

curing cancer, including but not limited 

to lymphoma, colon cancer, rectal 

cancer, and prostate cancer. The 

complaint also alleges that respondents 

have claimed that these products are 

effective in reducing the size of, or 

eliminating, cancerous tumors. The 

complaint further alleges that 

respondents have claimed that Native 

Essense Plus is effective in preventing 

breast cancer. The complaint alleges 

that respondents did not have a 


dwashington3 on PROD1PC60 with NOTICES
16212 Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Notices 

reasonable basis for these claims. The 

complaint also alleges that respondents 

falsely claimed that scientific research 

proves that Native Essense Plus 

prevents breast cancer, and that 

scientific studies prove that Native 

Essense with Cat’s Claw is effective in 

the treatment of cancer. 

Regarding chaparral herb, the 

Commission’s complaint alleges that 

respondents claimed that chaparral herb 

is effective in treating and curing 

cancer, is effective in causing people 

with cancer to go into complete 

remission without the need for any 

other form of treatment, and is effective 

in shrinking or eliminating cancerous 

tumors. The complaint alleges that 

respondents lacked a reasonable basis 

for these claims. 

The complaint also alleges that 

respondents lacked a reasonable basis 

for the claims that Mai-T Mushroom 

Plus is effective in preventing, treating 

and curing cancer, including but not 

limited to lung cancer, stomach cancer, 

hepatocellular cancer, leukemia, and 

Kaposi’s sarcoma; and that Mai-T 

Mushroom Plus is effective in inhibiting 

the growth of cancerous tumors. Finally, 

the complaint alleges that respondents 

falsely claimed that clinical studies 

prove that Maitake mushrooms and MaiT Mushroom Plus prevent and treat lung 

cancer, stomach cancer, hepatocellular 

cancer, leukemia, and Karposi’s 

sarcoma, and inhibit tumor growth. 

The proposed consent order contains 

provisions designed to prevent 

respondents from engaging in similar 

acts and practices in the future. Part I 

requires respondents to have competent 

and reliable scientific evidence 

substantiating any claim that Native 

Essense (Rene Caisse) Formula tea or 

extract, Native Essense Plus tea or 

extract, Native Essense with Cat’s Claw 

tea or extract, chaparral herb (or any 

product containing chaparral herb), 

Maitake mushroom extract, or Mai-T 

Mushroom Plus Formula extract, or any 

other covered product or service, is 

effective in the treatment or cure of 

cancer; prevents or lowers the risk of 

cancer; is effective in reducing the size 

of, or eliminating, cancerous tumors; or 

is safe or non-toxic or has no side 

effects. A ‘‘covered product or service’’ 

is defined as any food, dietary 

supplement, or drug, including, but not 

limited to any of the above products, or 

any other health-related product, 

service, or program. 

Part II requires that any future claim 

about the efficacy, performance, or 

health-related benefits of any covered 

product or service be truthful and 

supported by competent and reliable 

scientific evidence. Part III requires that 

respondents, in connection with the 

advertising of any product, shall not 

misrepresent, in any manner, expressly 

or by implication, the existence, 

contents, validity, results, conclusions, 

or interpretations of any test, study, or 

research. 

Part IV of the proposed order provides 

that the order does not prohibit 

respondents from making 

representations for any drug that are 

permitted in labeling for the drug under 

any tentative or final Food and Drug 

Administration (‘‘FDA’’) standard or 

under any new drug application 

approved by the FDA, and 

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 V of the proposed order requires 

respondents to compile a list of all 

consumers who purchased Native 

Essense (Rene Caisse) Formula tea or 

extract, Native Essense Plus tea or 

extract, Native Essense with Cat’s Claw 

tea or extract, chaparral herb (or any 

product containing chaparral herb), 

Maitake mushroom extract, or Mai-T 

Mushroom Plus Formula extract from 

respondents since July 1, 2005, and to 

mail a letter (attached to the proposed 

order as Attachment A) to each such 

purchaser describing the scientific 

evidence related to these products. Part 

V also prohibits respondents from 

providing any identifying information 

about these purchasers to anyone other 

than the Commission, another law 

enforcement agency, or as required by 

law. 

Part VI of the proposed order requires 

respondents to keep copies of relevant 

advertisements and materials that 

substantiate claims made in the 

advertisements. Part VII requires 

respondents to provide copies of the 

order to certain of their employees. Part 

VIII requires the corporate respondent to 

notify the Commission at least thirty 

days prior to any change in the 

corporation that may affect compliance 

obligations arising under this order. Part 

IX requires the individual respondents 

to notify the Commission of their 

affiliation with any new business or 

employment. Part X requires 

respondents to file compliance reports 

with the Commission. Part XI of the 

proposed order is a ‘‘sunset’’ provision, 

dictating that the order will terminate 

twenty years from the date it is issued 

or twenty years after a complaint is filed 

in federal court, by either the United 

States or the FTC, alleging any violation 

of the order. 

The purpose of this analysis is to 

facilitate public comment on the 

proposed order. It is not intended to 

constitute an official interpretation of 

the agreement and proposed order or to 

modify in any way their terms. 

By direction of the Commission. 

Richard C. Donohue, 

Acting Secretary. 

[FR Doc. E9–8140 Filed 4–8–09: 8:45 am] 

BILLING CODE: 6750–01–S 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Disease Control and 

Prevention 

Advisory Council for the Elimination of 

Tuberculosis: Notice of Charter 

Renewal 

This gives notice under the Federal 

Advisory Committee Act (Pub. L. 92– 

463) of October 6, 1972, that the 

Advisory Council for the Elimination of 

Tuberculosis, Department of Health and 

Human Services, has been renewed for 

a 2-year period through March 15, 2011. 

For information, contact Hazel Dean, 

Sc.D., M.P.H., Executive Secretary, 

Advisory Council for the Elimination of 

Tuberculosis, Department of Health and 

Human Services, 1600 Clifton Road, 

NE., Mailstop E–10, Atlanta, Georgia 

30333, telephone 404/639–8000 or fax 

404/639–8600. 

The Director, Management Analysis 

and Services Office, has been delegated 

the authority to sign Federal Register 

notices pertaining to announcements of 

meetings and other committee 

management activities, for both the 

Centers for Disease Control and 

Prevention and the Agency for Toxic 

Substances and Disease Registry. 

Dated: March 31, 2009. 

Elaine L. Baker, 

Director, Management Analysis and Services 

Office, Centers for Disease Control and 

Prevention. 

[FR Doc. E9–8072 Filed 4–8–09; 8:45 am] 

BILLING CODE 4163–18–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Disease Control and 

Prevention 

CDC/Health Resources and Services 

Administration (HRSA) Advisory 

Committee on HIV and STD Prevention 

and Treatment 

In accordance with section 10(a)(2) of 

the Federal Advisory Committee Act 

(Pub. L. 92–463), the CDC announces 


dwashington3 on PROD1PC60 with NOTICES