Kmart Corporation; Analysis of Proposed Consent Order to Aid Public Comment, 28494-28496 [E9-14106]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 74, Number 114 (Tuesday, June 16, 2009)]
[Notices]
[Pages 28494-28496]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-14106]


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FEDERAL TRADE COMMISSION

[File No. 082 3186]


Kmart Corporation; Analysis of Proposed Consent Order to Aid 
Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed Consent Agreement.

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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.

DATES: Comments must be received on or before July 9, 2009.

ADDRESSES: Interested parties are invited to submit written comments 
electronically or in paper form. Comments should refer to ``Kmart 
Corp., File No. 082 3186'' 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 (https://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

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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), 16 CFR 4.9(c).\1\
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    \1\ 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).
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    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: (https://secure.commentworks.com/ftc-KmartCorp) (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: (https://secure.commentworks.com/ftc-KmartCorp). If this Notice 
appears at (https://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 https://www.ftc.gov/ to read the Notice and the 
news release describing it.
    A comment filed in paper form should include the ``Kmart Corp., 
File No. 082 3186`` 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 (Annex D), 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 (https://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 (https://www.ftc.gov/ftc/privacy.shtm).

FOR FURTHER INFORMATION CONTACT: Michael J. Davis, Bureau of Consumer 
Protection, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580, (202) 
326-2458.

SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Sec.  2.34 the 
Commission 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 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 June 9, 2009), on the World Wide Web, at (https://www.ftc.gov/os/actions.shtm). 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 (``FTC'' or ``Commission'') has 
accepted, subject to final approval, an agreement containing a consent 
order from Kmart Corporation, a corporation (``respondent'').
    The proposed consent order has been placed on the public record for 
thirty (30) days for reception 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 or make final the agreement's proposed 
order.
    This matter involves Kmart's marketing and sale of American Fare 
paper plates with shrink-wrap packaging that prominently states 
``biodegradable'' without qualification on the front of the wrapper. 
According to the FTC complaint, respondent represented that American 
Fare paper plates will completely break down and return to nature, 
i.e., decompose into elements found in nature, within a reasonably 
short period of time after customary disposal. The complaint alleges 
respondent's biodegradable claim is false because a substantial 
majority of total household waste is disposed of either in landfills, 
incinerators, or recycling facilities and these customary disposal 
methods do not present conditions that would allow for the paper plates 
to completely break down and return to nature, i.e., decompose into 
elements found in nature, within a reasonably short period of time. The 
complaint further alleges that respondent failed to have substantiation 
for its biodegradable claim. The proposed consent order contains 
provisions designed to prevent respondent from engaging in similar acts 
and practices in the future.
    Part I.A of the proposed order prohibits respondent from making a 
representation that certain of its products are degradable unless the 
representation is true, not misleading, and substantiated by competent 
and reliable scientific evidence. Part I.B prohibits respondent from 
making any other environmental benefit claim about such products, 
unless at the time the representation is made, it is truthful and not 
misleading, and substantiated by competent and reliable evidence, which 
when appropriate must be competent and reliable scientific evidence.
    Parts II through V require respondent to keep copies of relevant 
advertisements and materials substantiating claims made in the 
advertisements; to provide copies of the order to certain of their 
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 and respond to other requests 
from FTC staff. Part VI provides that the order will terminate after 
twenty (20) years under certain circumstances.
    The purpose of this analysis is to facilitate public comment on the 
proposed order. It is not intended to constitute an official 
interpretation of

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the agreement and proposed order or to modify in any way their terms.
    By direction of the Commission.

Donald S. Clark
Secretary.
[FR Doc. E9-14106 Filed 6-15-09: 8:45 am]
BILLING CODE 6750-01-S