Winchester Industries; Analysis of Proposed Consent Order To Aid Public Comment, 12590-12591 [2012-5001]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 77, Number 41 (Thursday, March 1, 2012)]
[Notices]
[Pages 12590-12591]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-5001]


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FEDERAL TRADE COMMISSION

[File No. 102 3171]


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

DATES: Comments must be received on or before March 23, 2012.

ADDRESSES: Interested parties may file a comment online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``Winchester, File No. 
102 3171'' on your comment, and file your comment online at https://ftcpublic.commentworks.com/ftc/winchesterconsent, by following the 
instructions on the web-based form. If you prefer to file your comment 
on paper, mail or deliver your comment to the following address: 
Federal Trade Commission, Office of the Secretary, Room H-113 (Annex 
D), 600 Pennsylvania Avenue NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: James A. Kohm (202-326-2640) or Joshua 
S. Millard (202-326-2454), FTC, Bureau of Consumer Protection, 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 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 February 22, 2012), 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.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before March 23, 2012. 
Write ``Winchester, File No. 102 3171'' on your comment. Your comment--
including your name and your state--will be placed on the public record 
of this proceeding, including, to the extent practicable, on the public 
Commission Web site, at https://www.ftc.gov/os/publiccomments.shtm. As a 
matter of discretion, the Commission tries to remove individuals' home 
contact information from comments before placing them on the Commission 
Web site.
    Because your comment will be made public, you are solely 
responsible for making sure that your comment does not include any 
sensitive personal information, like anyone'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. You are also solely 
responsible for making sure that your comment does not include any 
sensitive health information, like medical records or other 
individually identifiable health information. In addition, do 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 FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do 
not include competitively sensitive information such as costs, sales 
statistics, inventories, formulas, patterns, devices, manufacturing 
processes, or customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and you have to follow the procedure explained 
in FTC Rule 4.9(c), 16 CFR 4.9(c).\1\ Your comment will be kept 
confidential only if the FTC General Counsel, in his or her sole 
discretion, grants your request in accordance with the law and the 
public interest.
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    \1\ In particular, the written request for confidential 
treatment that accompanies the comment must include the factual and 
legal basis for the request, and must identify the specific portions 
of the comment to be withheld from the public record. See FTC Rule 
4.9(c), 16 CFR 4.9(c).
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    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/winchesterconsent by following the instructions on the web-based 
form. If this Notice appears at https://www.regulations.gov/#!home, you 
also may file a comment through that Web site.
    If you file your comment on paper, write ``Winchester, File No. 102 
3171'' on your comment and on the envelope, and mail or deliver it to 
the following address: Federal Trade Commission, Office of the 
Secretary, Room H-113 (Annex D), 600 Pennsylvania Avenue NW., 
Washington, DC 20580. If possible, submit your paper comment to the 
Commission by courier or overnight service.
    Visit the Commission Web site at https://www.ftc.gov to read this 
Notice and the news release describing it. The FTC Act and other laws 
that the Commission administers permit the collection of public 
comments to

[[Page 12591]]

consider and use in this proceeding as appropriate. The Commission will 
consider all timely and responsive public comments that it receives on 
or before March 23, 2012. You can find more information, including 
routine uses permitted by the Privacy Act, in the Commission's privacy 
policy, at https://www.ftc.gov/ftc/privacy.htm.

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 Winchester Industries, a partnership (``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 or make final the agreement's proposed 
order.
    This matter involves respondent's marketing and sale of replacement 
windows for use in residences. According to the FTC complaint, 
respondent represented that consumers who replace their windows with 
Bristol and Winter Lock Super Triple-E A-Plus with Alpha-10 windows are 
likely to achieve residential energy savings of 47% or to save 47% on 
their heating and cooling costs. The complaint alleges that respondent 
did not possess and rely upon a reasonable basis substantiating these 
representations when it made them. Many factors determine the savings 
homeowners can realize by replacing their windows, including the home's 
geographic location, size, insulation package, and existing windows. 
Consumers who replace single or double-paned wood or vinyl-framed 
windows--common residential window types in the United States--with 
Winchester replacement windows are not likely to achieve a 47% 
reduction in residential energy consumption or heating and cooling 
costs. The complaint also alleges that, by providing its independent 
dealers and installers with advertising and other promotional materials 
making the above unsubstantiated representations, respondent provided 
the means and instrumentalities to engage in deceptive practices. Thus, 
the complaint alleges that respondent engaged in unfair or deceptive 
practices in violation of Section 5(a) of the FTC Act.
    Some promotional materials challenged in the FTC's complaint 
include the words ``up to'' in an apparent attempt to qualify 
representations that consumers who replace windows with respondent's 
windows are likely to achieve specified amounts of residential energy 
savings or reduction in residential heating and cooling costs. In the 
context of specific ads in this case, the words ``up to'' do not 
effectively qualify such representations for replacement windows. The 
FTC's complaint and the proposed consent order should not be 
interpreted as a general statement of how the Commission may interpret 
or take other action concerning representations including the words 
``up to'' for other products or services in the future.
    The proposed consent order contains three provisions designed to 
prevent respondent from engaging in similar acts and practices in the 
future. Part I addresses the marketing of windows. It prohibits 
respondent from making any representation that: (A) Consumers who 
replace their windows with respondent's windows achieve up to or a 
specified amount or percentage of energy savings or reduction in 
heating and cooling costs; or (B) respondent guarantees or pledges that 
consumers who replace their windows with respondent's windows will 
achieve up to or a specified amount or percentage of energy savings or 
reduction in heating and cooling costs; unless the representation is 
non-misleading and, at the time of making such representation, 
respondent possesses and relies upon competent and reliable scientific 
evidence to substantiate that all or almost all consumers are likely to 
receive the maximum represented savings or reduction. Further, if 
respondent represents, guarantees, or pledges that consumers achieve 
such energy savings or heating and cooling cost reductions under 
specified circumstances, it must: disclose those circumstances clearly 
and prominently in close proximity to such representation, guarantee, 
or pledge; and substantiate that all or almost all consumers are likely 
to receive the maximum represented, guaranteed, or pledged savings or 
reduction under those circumstances (e.g., when replacing a window of a 
specific composition in a building having a specific level of 
insulation in a specific region). The performance standard imposed 
under this Part constitutes fencing-in relief reasonably necessary to 
ensure that any future energy savings or reduction claims are not 
deceptive.
    Parts II and III address any product or service for which 
respondent makes any energy-related efficacy representation. Part II 
prohibits respondent from making any representation: (A) that any 
specific number or percentage of consumers who replace their windows 
with respondent's windows achieve energy savings or reduction in 
heating and cooling costs; or (B) about energy consumption, energy 
savings, energy costs, heating and cooling costs, U-factor, solar heat 
gain coefficient, R-value, K-value, insulating properties, thermal 
performance, or energy-related efficacy; unless the representation is 
non-misleading and substantiated by competent and reliable scientific 
evidence. Part III prohibits respondent from providing to others the 
means and instrumentalities with which to make any false, 
unsubstantiated, or otherwise misleading representation of material 
fact. It defines ``means and instrumentalities'' to mean any 
information, including any advertising, labeling, or promotional, sales 
training, or purported substantiation materials, for use by trade 
customers in their marketing of any such product or service.
    Parts IV though VII require respondent to: Keep copies of 
advertisements and materials relied upon in disseminating any 
representation covered by the order; provide copies of the order to 
certain personnel, agents, and representatives having responsibilities 
with respect to the subject matter of the order; notify the Commission 
of changes in its structure that might affect compliance obligations 
under the order; and file a compliance report with the Commission and 
respond to other requests from FTC staff. Part VIII 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 the complaint or the proposed order, or to modify the 
proposed order's terms in any way.

    By direction of the Commission, Commissioner Rosch abstaining.
Donald S. Clark
Secretary.
[FR Doc. 2012-5001 Filed 2-29-12; 8:45 am]
BILLING CODE 6750-01-P