Beiersdorf, Inc.; Analysis of Proposed Consent Order To Aid Public Comment, 39105-39107 [2011-16739]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 76, Number 128 (Tuesday, July 5, 2011)]
[Notices]
[Pages 39105-39107]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16739]


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FEDERAL TRADE COMMISSION

[File No. 092-3194]


Beiersdorf, Inc.; 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 draft 
complaint and the terms of the

[[Page 39106]]

consent order--embodied in the consent agreement--that would settle 
these allegations.

DATES: Comments must be received on or before July 29, 2011.

ADDRESSES: Interested parties are invited to submit written comments 
electronically or in paper form. Comments should refer to ``Beiersdorf, 
File No. 092-3194'' 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 Web site, 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 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 Web link: https://ftcpublic.commentworks.com/ftc/beiersdorfconsent 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 Web link https://ftcpublic.commentworks.com/ftc/beiersdorfconsent. If this Notice appears at https://www.regulations.gov/search/index.jsp, you may also file an electronic 
comment through that Web site. The Commission will consider all 
comments that regulations.gov forwards to it. You may also visit the 
FTC Web site at https://www.ftc.gov/ to read the Notice and the news 
release describing it.
    A comment filed in paper form should include the ``Beiersdorf, File 
No. 092-3194'' 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-113 (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 Web site, 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 Web site. 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: Evan Rose (415-848-5100), FTC, Western 
Region, San Francisco, 600 Pennsylvania Avenue, NW., Washington, DC 
20580.

SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and 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 29, 2011), 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, 
DC 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 Consent 
Order from Beiersdorf, 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 
``NIVEA My Silhouette! Redefining Gel-Cream'' (``My Silhouette'') by 
respondent. Respondent has marketed My Silhouette to consumers through 
third-party retail outlets.
    My Silhouette is a skin cream that contains ``Bio-slim Complex,'' a 
combination of ingredients that includes white tea and anise. According 
to the FTC complaint, respondent promoted My Silhouette as able to slim 
and reshape the body.
    Specifically, the FTC complaint alleges that respondent 
represented, in various advertisements, that regular use of My 
Silhouette results in significant reductions in body size. The 
complaint alleges that this claim is false and thus violates 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 My 
Silhouette or any other topically applied product causes substantial 
weight or fat loss or a substantial reduction in body size.
    Part II covers any representation that a drug, dietary supplement, 
or cosmetic causes weight or fat loss or a reduction in body size. Part 
II prohibits

[[Page 39107]]

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, double-
blind, 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 
representations, other than representations covered under Parts I or 
II, about the health benefits of any drug, dietary supplement, or 
cosmetic, 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 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 V of the proposed order requires respondent to pay nine 
hundred thousand dollars ($900,000) to the Commission to be used for 
equitable relief, including restitution, and any attendant expenses for 
the administration of such equitable relief.
    Parts VI, VII, VIII, and IX 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 X 
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.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2011-16739 Filed 7-1-11; 8:45 am]
BILLING CODE 6750-01-P