L'Occitane, Inc.; Analysis of Proposed Consent Order To Aid Public Comment, 2668-2674 [2014-00560]
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Federal Register / Vol. 79, No. 10 / Wednesday, January 15, 2014 / Notices
a more finely calibrated manner than
they have in the GeneLink and foru
International orders to avoid imposing
‘‘unduly burdensome restrictions that
might chill information useful to
consumers in making purchasing
decisions.’’ 8
In addition, based on the same
concerns about imposing unnecessarily
burdensome and costly obligations, I do
not support a general requirement that
all products be tested by different
researchers working independently
without an indication that the defendant
fabricated or otherwise interfered with a
study or its results.9 Where defendants
have fabricated results, as our complaint
against Sensa alleges, a requirement of
independent testing may be appropriate,
but a simple failure to have adequate
substantiation should not automatically
trigger such an obligation. In other
cases, where there is some concern
about a sponsor or researcher biasing a
study, our orders may address this in a
less burdensome way by requiring the
producer making the disease-related
claims to provide the underlying testing
data to substantiate its claims, which we
can examine for reliability. Similarly,
the requirement to test an ‘‘essentially
equivalent product,’’ which appears to
be more rigorous than FDA
requirements for food and supplement
products, can significantly and
unnecessarily increase the costs of
substantiation, again potentially
depriving consumers of useful
information. Instead, Commission
orders should clearly allow claims
regarding individual ingredients in
combined products as long as claims for
each ingredient are properly
substantiated and there are no known
relevant interactions.10
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8 FTC
Staff Comment Before the Food and Drug
Administration In the Matter of Assessing
Consumer Perceptions of Health Claims, Docket No.
2005N–0413 (2006), available at https://
www.ftc.gov/be/V060005.pdf.
9 The FDA does not require independent testing
for clinical investigational studies of medical
products, including human drug and biological
products or medical devices, and it permits
sponsors to use a variety of approaches to fulfill
their responsibilities for monitoring. See FDA
Guidance for Industry Oversight of Clinical
Investigations—A Risk-Based Approach to
Monitoring (Aug. 2013), available at https://
www.fda.gov/downloads/Drugs/
GuidanceComplianceRegulatoryInformation/
Guidances/UCM269919.pdf.
10 Although the statement by Chairwoman
Ramirez and Commissioner Brill asserts that the
orders in GeneLink and foru International permit
claims for individual ingredients in combined
products as long as the claims for each ingredient
are properly substantiated and there are no known
interactions, the orders actually require that
‘‘reliable scientific evidence generally accepted by
experts in the field demonstrate that the amount
and combination of additional ingredients is
unlikely to impede or inhibit the effectiveness of
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It is my hope and recommendation
that as we consider future cases
involving health- and disease-related
claims, the Commission and its staff
engage in a further dialogue about our
substantiation requirements to discern
how best to assess the potential costs
and benefits of allowing different types
of evidence that might provide a
reasonable basis to substantiate such
claims. Although I am willing to
support liability for failures to have
adequate substantiation for health- and
disease-related claims under certain
circumstances, I am not willing to
support a de facto two-RCT standard on
health- and disease-related claims for
food or other relatively-safe products.
Statement of Commissioner Joshua D.
Wright
Today the Commission announces
five settlements involving the deceptive
marketing of a variety of nutritional and
dietary supplements, skincare products,
and weight-loss remedies. While the
course of business conduct, type of
product and particular advertising claim
at issue in each case differs, all share
one common characteristic—the
Commission has alleged that, in the
course of advertising their products,
each of these defendants has made false
or unsubstantiated claims about the
treatment of certain medical or health
conditions.
Cases that challenge false or
unsubstantiated claims—especially
those involving serious medical
conditions—are an important
component of our agency’s mission to
protect consumers from economic
injury. Indeed, the aggregate consumer
injury in these particular matters is
estimated to be $420 million and these
settlement agreements will return
approximately $33 million to
consumers. I fully support the
Commission’s efforts to deter deceptive
advertising and voted in favor of
authorizing these particular settlements.
In crafting remedial relief in these
cases, the Commission inevitably faces
a tradeoff between deterring deceptive
advertising and preserving the benefits
to competition and consumers from
truthful claims. Tailoring remedial
relief—including the level of
substantiation required—to the specific
claims at issue is in the best interests of
the ingredients in the Essentially Equivalent
Product.’’ Decision and Order at 2, In the Matter of
GeneLink, Inc. FTC File No. 112 3095 (emphasis
added). My point is that the FDA does not require
direct evidence regarding combinations of
individual ingredients deemed GRAS but the order
on its face requires scientific evidence
demonstrating the effect of such combinations.
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consumers.1 I write today to express
some of my views on this issue.
Each of the consent agreements
announced today includes injunctive
relief provisions requiring the settling
parties to satisfy a standard of
‘‘competent and reliable scientific
evidence’’ before again making the
claims at issue. Each consent agreement
further defines ‘‘competent and reliable
scientific evidence’’ as requiring, among
other things, two adequate and wellcontrolled human clinical studies
(randomized controlled trials or RCTs)
of the product. I encourage the
Commission to explore more fully
whether the articulation and scope of
injunctive relief in these and similar
settlements strikes the right balance
between deterring deceptive advertising
and preserving for consumers the
benefits of truthful claims. The optimal
amount and type of evidence to
substantiate a future claim will vary
from case to case. Similarly, a factspecific inquiry may justify specially
crafted injunctive relief in certain cases,
such as bans, performance bonds or
document retention requirements for
underlying study data. I look forward to
working with my fellow Commissioners
to continue to examine and evaluate our
formulation of the competent and
reliable scientific evidence standard, as
well as the ancillary injunctive
provisions in consent agreements, in
order to best protect consumers from the
costs imposed upon them by deceptive
advertising while encouraging
competition and truthful advertising
that benefits consumers.
[FR Doc. 2014–00643 Filed 1–14–14; 8:45 am]
BILLING CODE 6750–01–P
FEDERAL TRADE COMMISSION
[File No. 122 3115]
L’Occitane, Inc.; Analysis of Proposed
Consent Order To Aid Public Comment
Federal Trade Commission.
Proposed consent agreement.
AGENCY:
ACTION:
1 The Commission’s determination of whether an
advertiser has adequate substantiation in the first
instance depends upon ‘‘a number of factors
relevant to the benefits and costs of substantiating
a particular claim. These factors include: The type
of claim, the product, the consequences of a false
claim, the benefits of a truthful claim, the cost of
developing substantiation for the claim, and the
amount of substantiation experts in the field believe
is reasonable.’’ FTC Policy Statement Regarding
Advertising Substantiation, appended to Thompson
Medical Co., 104 F.T.C. 648, 839 (1984), aff’d, 791
F.2d 189 (D.C. Cir. 1986), cert. denied, 479 U.S.
1086 (1987). Formulating the required level of
substantiation for injunctive relief should
necessarily be grounded in the factors set forth in
this policy statement, although additional
considerations might also be relevant.
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Federal Register / Vol. 79, No. 10 / Wednesday, January 15, 2014 / Notices
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 of Proposed Consent Order 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 February 6, 2014.
ADDRESSES: Interested parties may file a
comment at https://
ftcpublic.commentworks.com/ftc/
loccitaneconsent online or on paper, by
following the instructions in the
Request for Comment part of the
SUPPLEMENTARY INFORMATION section
below. Write ‘‘L’Occitane, Inc.—Consent
Agreement; File No. 122 3115’’ on your
comment and file your comment online
at https://ftcpublic.commentworks.com/
ftc/fidelitynationalconsent https://
ftcpublic.commentworks.com/ftc/
loccitaneconsent 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:
Matthew D. Gold, Federal Trade
Commission Western Region, (415–848–
5100), 901 Market Street, Suite 570 San
Francisco, CA 94103.
SUPPLEMENTARY INFORMATION: Pursuant
to Section 6(f) of the Federal Trade
Commission Act, 15 U.S.C. 46(f), and
FTC Rule 2.34, 16 CFR 2.34, notice is
hereby given that the above-captioned
consent agreement containing 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 January 7, 2014), 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
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SUMMARY:
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before February 6, 2014. Write
‘‘L’Occitane, Inc.—Consent Agreement;
File No. 122 3115’’ 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
privileged or confidential,’’ as discussed
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.
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/
loccitaneconsent by following the
instructions on the web-based form. If
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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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 ‘‘L’Occitane, Inc.—Consent
Agreement; File No. 122 3115’’ 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
consider and use in this proceeding as
appropriate. The Commission will
consider all timely and responsive
public comments that it receives on or
before February 6, 2014. 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 Proposed 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
L’Occitane, 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 ‘‘Almond
Beautiful Shape’’ and ‘‘Almond Shaping
Delight’’ (collectively, ‘‘the almond
products’’) by respondent. Respondent
has marketed the almond products to
consumers through its retail stores and
Web site, and through third-party retail
outlets.
The almond products are skin creams
that contain almond extracts and other
ingredients. According to the FTC
complaint, respondent promoted the
almond products as able to slim and
reshape the body.
Specifically, the FTC complaint
alleges that respondent represented, in
various advertisements, that topical use
of Almond Beautiful Shape trims 1.3
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inches from the user’s thighs in just four
weeks; topical use of Almond Beautiful
Shape significantly slims the user’s
thighs and buttocks; topical use of
Almond Beautiful Shape significantly
reduces cellulite; and topical use of
Almond Shaping Delight significantly
slims the body in just four weeks. The
complaint alleges that these claims are
unsubstantiated and thus violate the
FTC Act. The complaint also alleges that
respondent represented, in various
advertisements, that scientific tests
prove that topical use of Almond
Beautiful Shape trims 1.3 inches from
the user’s thighs in just four weeks;
scientific tests prove that topical use of
Almond Beautiful Shape significantly
reduces cellulite; and scientific tests
prove that Almond Shaping Delight
significantly slims the body in just four
weeks. The complaint alleges that these
claims are false and thus violate 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 the almond products
or any other topically applied product
causes substantial weight or fat loss or
a substantial reduction in body size.
Part I of the order is designed to fence
in respondent by ensuring that extreme,
scientifically unfeasible claims will not
be made in the future.
Part II addresses the slimming claims
at issue in this matter. It covers any
representation, other than
representations covered under Part I,
that a drug or cosmetic causes weight or
fat loss or a reduction in body size. Part
II prohibits 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, placebocontrolled 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 any
representation, other than
representations covered under Parts I or
II, that use of a drug or cosmetic reduces
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or eliminates cellulite or affects body fat
or weight, 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
addresses the allegedly false claims that
scientific tests prove that topical use of
Almond Beautiful Shape trims 1.3
inches from the user’s thighs in just four
weeks; scientific tests prove that topical
use of Almond Beautiful Shape
significantly reduces cellulite; and
scientific tests prove that Almond
Shaping Delight significantly slims the
body in just four weeks. Part IV
prohibits respondent, when advertising
any product, from misrepresenting the
existence, contents, validity, results,
conclusions, or interpretations of any
test, study, or research, or
misrepresenting that the benefits of the
product are scientifically proven.
Part V 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 VII of the proposed order requires
respondent to pay four hundred and
fifty thousand dollars ($450,000) to the
Commission to be used for equitable
relief, including restitution, and any
attendant expenses for the
administration of such equitable relief.
To facilitate the payment of redress, Part
VI of the proposed order requires
L’Occitane to provide to the
Commission a searchable electronic file
containing the name and contact
information of all consumers who
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purchased the almond products from
March 19, 2012 through the date of
entry of the order.
Parts VIII, IX, X, and XI 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 XII 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.
Statement of Chairwoman Edith
Ramirez and Commissioner Julie Brill
We write to explain our support for
the remedy imposed against
respondents GeneLink, Inc. and foru
International Corporation, which we
believe to be amply supported by the
relevant facts. In this, as in all of the
Commission’s advertising actions
alleging deceptive health claims, the
Commission has called for, as proposed
relief, a level of substantiation that is
grounded in concrete scientific evidence
and reasonably tailored to ensure that
the conduct giving rise to the violation
ceases and does not recur, among other
important remedial goals. In our view,
the remedy adopted here accomplishes
just that, without imposing undue costs
on marketers or consumers more
generally.
Respondents market and sell
genetically customized nutritional
supplements and topical skin products.
As described in the complaint, this
enforcement action stems from claims
made by respondents in promotional
materials and through testimonials that
their products compensate for
consumers’ ‘‘genetic disadvantages’’ and
cure or treat serious conditions such as
diabetes, heart disease, and arthritis. In
a newsletter, for example, respondents
represented their products had cured ‘‘a
serious diabetic and cardiac patient,’’
and an affiliate’s Web site stated that the
products produced ‘‘improvements in
everything from blood pressure to
eczema to hormonal issues to
arthritis.’’ 1 The Commission alleges that
1 Compl.
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respondents lacked adequate
substantiation for these claims and that
they falsely represented that the
products’ benefits were scientifically
proven.
Disease treatment claims such as
these require a rigorous level of
substantiation. Based on evidence from
genetics and nutritional genomics
experts, the Commission has reason to
believe that well-controlled human
clinical trials (referred to here as
‘‘randomized controlled trials’’ or
‘‘RCTs’’) are needed to substantiate
respondents’ claims and that the studies
relied on by respondents to back up
their claims fall far short of this
evidence. Because respondents lacked
even one valid RCT for their products,
it was unnecessary for the Commission
to decide, for purposes of assessing
liability, the precise number of RCTs
needed to substantiate their claims.
In fashioning an appropriate remedy,
however, we are requiring that
respondents have at least two RCTs
before making disease prevention,
treatment, and diagnosis claims. We
have the discretion to issue orders
containing ‘‘fencing-in’’ provisions—
‘‘provisions . . . that are broader than
the conduct that is declared unlawful.’’
Telebrands Corp. v. FTC, 457 F.3d 354,
357 n.5 (4th Cir. 2006) (citation and
internal quotation marks omitted). Here,
we believe that the two-RCT mandate is
appropriate and reasonably crafted to
prevent the recurrence of respondents’
alleged unlawful conduct. This
requirement conforms to wellrecognized scientific principles favoring
replication of study results to establish
a causal relationship between exposure
to a substance and a health outcome.
See, e.g., Thompson Med. Co., 104
F.T.C. 648, 720–21, 825 (1984)
(requiring two RCTs to support claims
of arthritis pain relief and thereby
affirming determination that
‘‘[r]eplication is necessary because there
is a potential for systematic bias and
random error in any clinical trial’’),
aff’d, 791 F.2d 189 (D.C. Cir. 1986).2 It
also provides clear rules for
respondents, facilitating the setting of
future research and marketing agendas,
and preserves law enforcement
resources by minimizing future
argument over the quantity and quality
of substantiation needed for the most
2 See also Geoffrey Marczyk et al., Essentials of
Research Design and Methodology 15–16 (2005)
(‘‘The importance of replication in research cannot
be overstated. Replication serves several integral
purposes, including establishing the reliability (i.e.,
consistency) of the research study’s findings and
determining . . . whether the results of the original
study are generalizable to other groups of research
participants.’’).
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serious health claims about
respondents’ products. Moreover, the
deceptive claims alleged in the
complaint are the type of significant
violations of law for which fencing-in
relief is more than justified as an
additional safeguard against potential
recidivism. See, e.g., id. at 834 (ruling
that deceptive health claims about
topical analgesic for arthritis pain
warranted fencing-in, and noting that
the seriousness of the violations was
‘‘affected by the fact that consumers
could not readily judge the truth or
falsity of the claims’’).
While not taking issue with
respondents’ liability as alleged in the
Commission’s complaint, Commissioner
Ohlhausen objects to the Commission’s
decision to require, as a remedial
matter, that respondents have at least
two RCTs before representing that their
genetic products can cure, treat,
diagnose, or prevent a disease. In
addition to arguing that the two-RCT
requirement is ‘‘unduly high,’’
Commissioner Ohlhausen expresses
concern that these and other recent
Commission orders may lead advertisers
in general to believe that they too must
invariably have two RCTs to
substantiate health and disease claims
for a variety of products, leading them
to forgo otherwise adequately
substantiated claims and depriving
consumers of potentially useful
information.3 We respectfully disagree.
There is nothing in our action today
that amounts to the imposition of a ‘‘de
facto two-RCT standard on health- and
disease-related claims.’’ 4 In this and
other recent enforcement actions, the
Commission has consistently adhered to
its longstanding view that the proper
level of substantiation for establishing
liability is a case-specific factual
determination as to what constitutes
competent and reliable scientific
evidence for the advertising claims at
issue.5 The same fact-specific approach
has guided the Commission’s remedial
3 Statement of Commissioner Maureen K.
Ohlhausen, Dissenting in Part and Concurring in
Part [hereinafter Ohlhausen Statement] at 1. In her
Statement, Commissioner Ohlhausen also
references various weight-loss related enforcement
actions announced today by the Commission,
including FTC v. Sensa Products, LLC. Her
objections, however, center on the remedy imposed
in this matter.
4 Ohlhausen Statement at 3.
5 See, e.g., Bristol Meyers Co., 102 F.T.C. 21, 332–
38 (1983), aff’d, 738 F.2d 554 (2d Cir. 1984); FTC,
Dietary Supplements: An Advertising Guide for
Industry 10 (Apr. 2001) [hereinafter Dietary
Supplements Advertising Guide] (‘‘When no
specific claim about the level of support is made,
the evidence needed depends on the nature of the
claim. A guiding principle for determining the
amount and type of evidence that will be sufficient
is what experts in the relevant area of study would
generally consider to be adequate.’’).
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standards. Recent Commission consent
orders concerning different types of
health claims have variously required
two RCTs,6 one RCT,7 or more generally
defined ‘‘competent and reliable
scientific evidence.’’ 8 Against this
backdrop, we are not persuaded that by
requiring two RCTs as a remedial matter
here, the Commission will create a
misperception among advertisers about
the substantiation standards that govern
liability for deceptive advertising.9
However, to the extent other marketers
look to our orders for signals as to the
type of backing required for disease
treatment claims, we prefer that they
understand that serious claims like
those made by respondents must have
hard science behind them.
We also disagree that the proposed
remedy will deny consumers access to
useful information about new areas of
science. The value of information
naturally depends on its accuracy.10 As
6 See, e.g., FTC v. Skechers U.S.A., Inc., No. 1:12–
cv–01214–JG (N.D. Ohio July 12, 2012) (prohibiting,
as a remedial matter, weight loss claims without
two RCTs); FTC v. Labra, No. 11 C 2485 (N.D. Ill.
Jan. 11, 2012) (same); FTC v. Iovate Health Scis.
USA, Inc., No. 10–cv–587 (W.D.N.Y. July 29, 2010)
´
(same); Nestle Healthcare Nutrition, Inc., 151 F.T.C.
1 (2011) (requiring two RCTs for claims that any
probiotic drink or certain nutritionally complete
drinks reduce the duration of acute diarrhea in
children or absences from daycare or school due to
illness).
7 See, e.g., FTC v. Skechers U.S.A., Inc., No. 1:12–
cv–01214–JG (N.D. Ohio July 12, 2012) (prohibiting
muscle strengthening claims for any footwear
product without one RCT); FTC v. Reebok Int’l Ltd.,
No. 1:11–cv–02046–DCN (N.D. Ohio Sept. 29, 2011)
(same).
8 See, e.g., NBTY, Inc., 151 F.T.C. 201 (2011)
(requiring marketer of vitamins to possess
‘‘competent and reliable scientific evidence’’ for
any claim about the health benefits, performance,
or efficacy of any product).
9 Moreover, as Commissioner Ohlhausen notes,
Ohlhausen Statement at 2 n.7, there may be some
instances in which the medical community would
not require RCTs to demonstrate that a substance
treats, prevents, or reduces the risk of a disease.
See, e.g., Dietary Supplements Advertising Guide,
supra note 5, at 11 (explaining that an appropriately
qualified claim based on epidemiological evidence
would be permitted where ‘‘[a] clinical intervention
trial would be very difficult and costly to conduct,’’
‘‘experts in the field generally consider
epidemiological evidence to be adequate’’ and there
is no ‘‘stronger body of contrary evidence’’). But,
contrary to Commissioner Ohlhausen’s contention,
the link between folic acid and neural tube birth
defects was substantiated using a combination of
RCTs and observational epidemiological evidence,
as indicated by the articles she cites. See, e.g.,
Walter C. Willett, Folic Acid and Neural Tube
Defect: Can’t We Come to Closure?, 82 Am. J. Pub.
Health 666, 667 (1992).
10 In some instances, ‘‘emerging’’ scientific
evidence has been subsequently contradicted by
further research, leading to consumer confusion and
potential physical and financial harm. See, e.g., Eric
A. Klein et al., Vitamin E and the Risk of Prostate
Cancer, The Selenium and Vitamin E Cancer
Prevention Trial (SELECT), 306 J. Am. Med. Ass’n
1549, 1551 (2011) (reporting that a 2008
randomized, placebo-controlled prospective clinical
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the DC Circuit has emphasized,
‘‘misleading advertising does not serve,
and, in fact, disserves, th[e] interest’’ of
‘‘consumers and society . . . in the free
flow of commercial information.’’ FTC
v. Brown & Williamson Tobacco Corp.,
778 F.2d 35, 43 (D.C. Cir. 1985) (citation
and internal quotation marks omitted).
If respondents wish to rely on emerging
science, they can qualify their claims
accordingly. Properly qualified claims
are lawful and permissible under our
proposed orders. See Proposed Consent
Orders, Part III.
The fact that the ingredients in
respondents’ products are safe also does
not alter our conclusion. Consumers
who rely on respondents’ claims may
forgo important diet and lifestyle
changes that are known to reduce the
risk of diabetes, heart disease, or
arthritis. Or they may forgo treatments
that, unlike respondents’ products, have
been demonstrated to be effective. In
addition, respondents charge a
premium, over $100 per month, for their
customized products. Consumers,
therefore, may be deceived both to their
medical and economic detriment when
a safe product provides an ineffective
treatment. See FTC v. QT, Inc., 512 F.3d
858, 863 (7th Cir. 2008) (safe but
deceptively advertised treatment ‘‘will
lead some consumers to avoid
treatments that cost less and do more;
the lies will lead others to pay too much
for [treatment] or otherwise interfere
with the matching of remedies to
medical conditions’’); Pfizer Inc., 81
F.T.C. 23, 62 (1972) (‘‘A consumer
should not be compelled to enter into an
economic gamble to determine whether
a product will or will not perform as
represented.’’). Unsubstantiated disease
claims also harm honest competitors
that expend considerable resources on
studies or analyses of the existing
science and conform their advertising
claims accordingly. Allowing
companies to rely on ‘‘emerging’’
evidence to support disease claims
merely because the products in question
are safe would risk a ‘‘race to the
bottom’’—the proliferation of
progressively more egregious disease
claims, which would harm both
legitimate competitors and consumers
in the process.
Finally, Commissioner Ohlhausen
argues that requiring the RCTs to be
conducted by different researchers
working independently of each other
trial of over 35,000 men contradicted ‘‘considerable
preclinical and epidemiological evidence that
selenium and vitamin E may reduce prostate cancer
risk,’’ and that follow-up observational data from
2011 showed a statistically significant increase in
prostate cancer in the vitamin E group over
placebo).
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imposes undue burdens in the absence
of evidence that a defendant has
fabricated or interfered with a study or
its results.11 This requirement is an
important safeguard that lessens the
likelihood that researcher bias will
affect the outcome of a study and helps
ensure that the results are replicable.12
In short, we believe the relief obtained
by the Commission in this settlement is
warranted and strikes the right balance
between the need for accuracy in healthrelated advertising claims and the
burden placed on respondents.
Statement of Commissioner Maureen K.
Ohlhausen Dissenting In Part and
Concurring In Part
I strongly support the Commission’s
enforcement efforts against false and
misleading advertisements and therefore
have voted in favor of the consent
agreements with Sensa Products, LLC;
HCG Diet Direct, LLC; L’Occitane, Inc.;
and LeanSpa, LLC, despite having some
concerns about the scope of the relief in
several of these weight-loss related
matters. I voted against the consent
agreements in the matter of GeneLink,
Inc. and foru International Corporation,
however, because they impose an
unduly high standard of at least two
randomized controlled trials (or RCTs)
to substantiate any disease-related
claims, not just weight-loss claims.
Adopting a one-size-fits-all approach to
substantiation by imposing such
rigorous and possibly costly
requirements for such a broad category
of health- and disease-related claims 1
may, in many instances, prevent useful
information from reaching consumers in
11 Ohlhausen
Statement at 2–3.
Ohlhausen also objects to the
Part I requirement that testing be conducted on the
product about which the advertising claim is made
or an ‘‘essentially equivalent product,’’ arguing that
the order should authorize ‘‘claims regarding
individual ingredients in combined products as
long as claims for each ingredient are properly
substantiated and there are no known interactions.’’
Ohlhausen Statement at 3. In fact, the orders permit
that very thing. If there is reliable evidence that the
additional ingredients will not interact with the
tested product in a way that impacts efficacy, the
orders do not require testing of the combined
product. See Proposed Consent Orders at 3
(defining ‘‘Essentially Equivalent Product’’ to
permit additional ingredients, beyond those in the
tested product, if ‘‘reliable scientific evidence
generally accepted by experts in the field
demonstrates that the amount and combination of
additional ingredients [in the respondent’s product]
is unlikely to impede or inhibit the effectiveness of
the ingredients in the [tested product]’’).
1 This provision may apply quite broadly in
practice given the Commission majority’s
conclusion in our POM Wonderful decision that
many of the claims involving the continued healthy
functioning of the body also conveyed implied
disease-related claims. See POM Wonderful, LLC,
No. 9344, 2013 WL 268926 (F.T.C. Jan. 16, 2013).
12 Commissioner
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the marketplace and ultimately make
consumers worse off.2
The Commission has traditionally
applied the Pfizer 3 factors to determine
the appropriate level of substantiation
required for a specific advertising claim.
These factors examine the nature of the
claim and the type of product it covers,
the consequences of a false claim, the
benefits of a truthful claim, the cost of
developing the required substantiation
for the claim, and the amount of
substantiation experts in the field
believe is reasonable for such a claim.4
One of the goals of the Pfizer analysis
is to balance the value of greater
certainty of information about a
product’s claimed attributes with the
risks of both the product itself and the
suppression of potentially useful
information about it. Under such an
analysis, the burden for substantiation
for health- or disease-related claims
about a safe product, such as a food, for
example, should be lower than the
burdens imposed on drugs and biologics
because consumers face lower risks
when consuming the safe product.5
Recently, however, Commission
orders, including the ones in the matter
of GeneLink and foru International,
seem to have adopted two RCTs as a
standard requirement for health- and
disease-related claims for a wide array
of products.6 RCTs can be difficult to
2 To be clear, however, I am not advocating in
favor of permitting ‘‘unsubstantiated disease
claims,’’ as suggested in the statement of
Chairwoman Ramirez and Commissioner Brill.
Rather, I am suggesting that consumers would on
balance be better off if we clarified that our
requirements permit a variety of health- or diseaserelated claims about safe products, such as foods or
vitamins, to be substantiated by competent and
reliable scientific evidence that might not comprise
two RCTs.
3 Pfizer, Inc., 81 F.T.C. 23 (1972).
4 Id. at 91–93; see also FTC Policy Statement
Regarding Advertising Substantiation, 104 F.T.C.
839 (1984) (appended to Thompson Med. Co., 104
F.T.C. 648, 839 (1984)).
5 The FDA designates most food ingredients as
GRAS (generally recognized as safe). 21 CFR 170.30.
Vitamins and minerals are treated as foods by the
FDA and are also GRAS. See FDA Guidance for
Industry: Frequently Asked Questions about GRAS
(Dec. 2004), available at https://www.fda.gov/Food/
GuidanceRegulation/
GuidanceDocumentsRegulatoryInformation/
IngredientsAdditivesGRASPackaging/
ucm061846.htm#Q1. As a result, food ingredients,
vitamins, and minerals can be combined and sold
to the public without direct evidence on the
particular combination realized in the new product.
Many products are made up of several common
generic ingredients, for which there is little
financial incentive to test individually or to retest
in each particular combination.
6 The orders in this matter include as a Covered
Product any food, drug, or cosmetic that is
genetically customized or personalized for a
consumer or that is promoted to modulate the effect
of genes. Other cases requiring two RCTs are POM
Wonderful LLC, Docket No. 9344 (F.T.C. Jan. 10,
2013) (fruit juice); Dannon Co., Inc., 151 F.T.C. 62
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conduct and are often costly and timeconsuming relative to other types of
testing, particularly for diseases that
develop over a long period of time or
complex health conditions. Requiring
RCTs may be appropriate in some
circumstances, such as where use of a
product carries some significant risk, or
where the costs of conducting RCTs may
be relatively low, such as for conditions
whose development or amelioration can
be observed over a short time period.
Thus, I am willing to support the order
requirement of two RCTs for short-term
weight loss claims in the Sensa, HCG
Diet Direct, L’Occitane, and LeanSpa
matters because such studies can be
conducted in a relatively short amount
of time at a lower cost than for many
other health claims. My concern with
GeneLink and foru International and the
series of similar orders is that they
might be read to imply that two RCTs
are required to substantiate any healthor disease-related claims, even for
relatively-safe products. It seems likely
that producers may forgo making such
claims about these kinds of products,
even if they may otherwise be
adequately supported by evidence that
does not comprise two RCTs.7
Although raising the requirement for
both the number and the rigor of studies
required for substantiation for all
health- or disease-related claims may
increase confidence in those claims, the
correspondingly increased burdens in
time and money in conducting such
studies may suppress information that
would, on balance, benefit consumers. If
we demand too high a level of
substantiation in pursuit of certainty,
we risk losing the benefits to consumers
of having access to information about
emerging areas of science and the
corresponding pressure on firms to
compete on the health features of their
products. In my view, the Commission
should apply the Pfizer balancing test in
a more finely calibrated manner than
they have in the GeneLink and foru
International orders to avoid imposing
‘‘unduly burdensome restrictions that
´
(2011) (yogurt); Nestle Healthcare Nutrition, Inc.,
151 F.T.C. 1 (2011) (food); FTC v. Iovate Health Sci.
USA, Inc., No. 10–cv–587 (W.D.N.Y. July 29, 2010)
(dietary supplement).
7 Notably, the medical community does not
always require RCTs to demonstrate the beneficial
effects of medical and other health-related
innovations. For example, the recommendation that
women of childbearing age take a folic acid
supplement to reduce the risk of neural tube birth
defects was made without RCT evidence on the
relevant population. See Walter C. Willett, ‘‘Folic
Acid and Neural Tube Defect: Can’t We Come to
Closure?’’ American Journal of Public Health, May
1992, Vol. 82, No. 5; Krista S. Crider, Lynn B. Bailey
and Robert J. Berry, ‘‘Folic Acid Food
Fortification—Its History, Effect, Concerns, and
Future Directions,’’ Nutrients 2011, Vol. 3, 370–384.
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might chill information useful to
consumers in making purchasing
decisions.’’ 8
In addition, based on the same
concerns about imposing unnecessarily
burdensome and costly obligations, I do
not support a general requirement that
all products be tested by different
researchers working independently
without an indication that the defendant
fabricated or otherwise interfered with a
study or its results.9 Where defendants
have fabricated results, as our complaint
against Sensa alleges, a requirement of
independent testing may be appropriate,
but a simple failure to have adequate
substantiation should not automatically
trigger such an obligation. In other
cases, where there is some concern
about a sponsor or researcher biasing a
study, our orders may address this in a
less burdensome way by requiring the
producer making the disease-related
claims to provide the underlying testing
data to substantiate its claims, which we
can examine for reliability. Similarly,
the requirement to test an ‘‘essentially
equivalent product,’’ which appears to
be more rigorous than FDA
requirements for food and supplement
products, can significantly and
unnecessarily increase the costs of
substantiation, again potentially
depriving consumers of useful
information. Instead, Commission
orders should clearly allow claims
regarding individual ingredients in
combined products as long as claims for
each ingredient are properly
substantiated and there are no known
relevant interactions.10
8 FTC Staff Comment Before the Food and Drug
Administration In the Matter of Assessing
Consumer Perceptions of Health Claims, Docket No.
2005N–0413 (2006), available at https://
www.ftc.gov/be/V060005.pdf.
9 The FDA does not require independent testing
for clinical investigational studies of medical
products, including human drug and biological
products or medical devices, and it permits
sponsors to use a variety of approaches to fulfill
their responsibilities for monitoring. See FDA
Guidance for Industry Oversight of Clinical
Investigations—A Risk-Based Approach to
Monitoring (Aug. 2013), available at https://
www.fda.gov/downloads/Drugs/
GuidanceComplianceRegulatoryInformation/
Guidances/UCM269919.pdf.
10 Although the statement by Chairwoman
Ramirez and Commissioner Brill asserts that the
orders in GeneLink and foru International permit
claims for individual ingredients in combined
products as long as the claims for each ingredient
are properly substantiated and there are no known
interactions, the orders actually require that
‘‘reliable scientific evidence generally accepted by
experts in the field demonstrate that the amount
and combination of additional ingredients is
unlikely to impede or inhibit the effectiveness of
the ingredients in the Essentially Equivalent
Product.’’ Decision and Order at 2, In the Matter of
GeneLink, Inc. FTC File No. 112 3095 (emphasis
added). My point is that the FDA does not require
direct evidence regarding combinations of
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2673
It is my hope and recommendation
that as we consider future cases
involving health- and disease-related
claims, the Commission and its staff
engage in a further dialogue about our
substantiation requirements to discern
how best to assess the potential costs
and benefits of allowing different types
of evidence that might provide a
reasonable basis to substantiate such
claims. Although I am willing to
support liability for failures to have
adequate substantiation for health- and
disease-related claims under certain
circumstances, I am not willing to
support a de facto two-RCT standard on
health- and disease-related claims for
food or other relatively-safe products.
Statement of Commissioner Joshua D.
Wright
Today the Commission announces
five settlements involving the deceptive
marketing of a variety of nutritional and
dietary supplements, skincare products,
and weight-loss remedies. While the
course of business conduct, type of
product and particular advertising claim
at issue in each case differs, all share
one common characteristic—the
Commission has alleged that, in the
course of advertising their products,
each of these defendants has made false
or unsubstantiated claims about the
treatment of certain medical or health
conditions.
Cases that challenge false or
unsubstantiated claims—especially
those involving serious medical
conditions—are an important
component of our agency’s mission to
protect consumers from economic
injury. Indeed, the aggregate consumer
injury in these particular matters is
estimated to be $420 million and these
settlement agreements will return
approximately $33 million to
consumers. I fully support the
Commission’s efforts to deter deceptive
advertising and voted in favor of
authorizing these particular settlements.
In crafting remedial relief in these
cases, the Commission inevitably faces
a tradeoff between deterring deceptive
advertising and preserving the benefits
to competition and consumers from
truthful claims. Tailoring remedial
relief—including the level of
substantiation required—to the specific
claims at issue is in the best interests of
consumers.1 I write today to express
some of my views on this issue.
individual ingredients deemed GRAS but the order
on its face requires scientific evidence
demonstrating the effect of such combinations.
1 The Commission’s determination of whether an
advertiser has adequate substantiation in the first
instance depends upon ‘‘a number of factors
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Each of the consent agreements
announced today includes injunctive
relief provisions requiring the settling
parties to satisfy a standard of
‘‘competent and reliable scientific
evidence’’ before again making the
claims at issue. Each consent agreement
further defines ‘‘competent and reliable
scientific evidence’’ as requiring, among
other things, two adequate and wellcontrolled human clinical studies
(randomized controlled trials or RCTs)
of the product. I encourage the
Commission to explore more fully
whether the articulation and scope of
injunctive relief in these and similar
settlements strikes the right balance
between deterring deceptive advertising
and preserving for consumers the
benefits of truthful claims. The optimal
amount and type of evidence to
substantiate a future claim will vary
from case to case. Similarly, a factspecific inquiry may justify specially
crafted injunctive relief in certain cases,
such as bans, performance bonds or
document retention requirements for
underlying study data. I look forward to
working with my fellow Commissioners
to continue to examine and evaluate our
formulation of the competent and
reliable scientific evidence standard, as
well as the ancillary injunctive
provisions in consent agreements, in
order to best protect consumers from the
costs imposed upon them by deceptive
advertising while encouraging
competition and truthful advertising
that benefits consumers.
[FR Doc. 2014–00560 Filed 1–14–14; 8:45 am]
BILLING CODE 6750–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Disease Control and
Prevention
[30Day–14–0916]
Agency Forms Undergoing Paperwork
Reduction Act Review
wreier-aviles on DSK5TPTVN1PROD with NOTICES
The Centers for Disease Control and
Prevention (CDC) publishes a list of
relevant to the benefits and costs of substantiating
a particular claim. These factors include: the type
of claim, the product, the consequences of a false
claim, the benefits of a truthful claim, the cost of
developing substantiation for the claim, and the
amount of substantiation experts in the field believe
is reasonable.’’ FTC Policy Statement Regarding
Advertising Substantiation, appended to Thompson
Medical Co., 104 F.T.C. 648, 839 (1984), aff’d, 791
F.2d 189 (D.C. Cir. 1986), cert. denied, 479 U.S.
1086 (1987). Formulating the required level of
substantiation for injunctive relief should
necessarily be grounded in the factors set forth in
this policy statement, although additional
considerations might also be relevant.
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information collection requests under
review by the Office of Management and
Budget (OMB) in compliance with the
Paperwork Reduction Act (44 U.S.C.
Chapter 35). To request a copy of these
requests, call (404) 639–7570 or send an
email to omb@cdc.gov. Send written
comments to CDC Desk Officer, Office of
Management and Budget, Washington,
DC 20503 or by fax to (202) 395–5806.
Written comments should be received
within 30 days of this notice.
Proposed Project
Evaluation of Core Violence and
Injury Prevention Program (Core
VIPP)—Revision—(0920–0916,
Expiration 1/13/2014)—National Center
for Injury Prevention and Control
(NCIPC), Centers for Disease Control
and Prevention (CDC).
Background and Brief Description
Injuries and their consequences,
including unintentional and violencerelated injuries, are the leading cause of
death for the first four decades of life,
regardless of gender, race, or
socioeconomic status. More than
179,000 individuals in the United States
die each year as a result of unintentional
injuries and violence, more than 29
million others suffer non-fatal injuries
and over one-third of all emergency
department (ED) visits each year are due
to injuries.1 In 2000, injuries and
violence ultimately cost the United
States $406 billion, with over $80
billion in medical costs and the
remainder lost in productivity.1 Most
events that result in injury and/or death
from injury could be prevented if
evidence-based public health strategies,
practices, and policies were used
throughout the nation.
CDC’s National Center for Injury
Prevention and Control (NCIPC) is
committed to working with their
partners to promote actions that reduce
injuries, violence, and disabilities by
providing leadership in identifying
priorities, promoting tools, and
monitoring effectiveness of injury and
violence prevention, and to promote
effective strategies for the prevention of
injury and violence and their
consequences. One tool NCIPC will use
to accomplish this goal is through the
use of the Core Violence and Injury
Prevention Program (Core VIPP). This
program funds state health departments
(SHDs) to build their capacity to
disseminate, implement, and evaluate
evidence-based/best practice programs
and policies. This evaluation will
1 Finkelstein EA, Corso PS, Miller TR, Associates.
Incidence and Economic Burden of Injuries in the
United States. New York: Oxford University Press;
2006.
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consider the implementation and
outcomes of Core VIPP during the fiveyear funding period from August 2011
to July 2016. The Core VIPP will
support funded states in building
capacity and achieving health impact in
their states. The key components of
violence and injury prevention (VIP)
capacity for Core Base Integration
Component (BIC) VIPP are defined as:
infrastructure, evaluation, strategies,
collaboration, and surveillance.
CDC requests OMB approval to
continue to collect program evaluation
data for Core VIPP for an additional
three-year period. The purpose of the
evaluation is to track states’ progress
toward: (1) Achieving the Performance
Measures identified in the Funding
Opportunity Announcement (FOA); (2)
building and/or sustaining their VIP
capacity; and (3) achieving their focus
area SMART (Specific, Measurable,
Attainable, Reasonable, and Timebound) objectives. The ability of states
to make progress towards their SMART
objectives will serve as a measure of
Core VIPP’s impact on the burden of
violence and injury related morbidity
and mortality in funded states.
The primary data collections methods
will be used in the evaluation include:
(1) Interim and annual progress reports,
(2) online surveys, and (3) interviews.
The progress reports will track states’
performance measures and the activities
stated in the Core VIPP FOA and
monitor states’ progress toward their
focus area SMART objectives; the online
survey will be used to measure grantees’
changes in VIP capacity. Interviews will
be used to provide more in-depth
information about the key facilitators
and barriers states have encountered
while implementing their violence
prevention programs.
The table below details the
annualized number of respondents, the
average response burden per interview,
and the total response burden for the
surveys and telephone interviews.
Estimates of burden for the survey are
based on previous experience with
evaluation data collections conducted
by the evaluation staff. The State of the
States (SOTS) web-based survey
assessment will be completed by 20
Core Funded State Health Departments
(SHDs) and will take 3 hours to
complete. The SOTS Financial Module
will also be completed by the 20 BIC
funded SHD and will take 1 hour to
complete. The supplemental SOTS
Survey Questions will be completed by
20 BIC funded SHDs and take 1.5 hours
to complete. The BIC telephone
interviews will take 1.5 hours and will
be completed by the 20 Core funded
SHDs.
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Agencies
[Federal Register Volume 79, Number 10 (Wednesday, January 15, 2014)]
[Notices]
[Pages 2668-2674]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-00560]
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
[File No. 122 3115]
L'Occitane, Inc.; Analysis of Proposed Consent Order To Aid
Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed consent agreement.
-----------------------------------------------------------------------
[[Page 2669]]
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 of
Proposed Consent Order 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 February 6, 2014.
ADDRESSES: Interested parties may file a comment at https://ftcpublic.commentworks.com/ftc/loccitaneconsent online or on paper, by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Write ``L'Occitane, Inc.--
Consent Agreement; File No. 122 3115'' on your comment and file your
comment online at https://ftcpublic.commentworks.com/ftc/fidelitynationalconsent https://ftcpublic.commentworks.com/ftc/loccitaneconsent 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: Matthew D. Gold, Federal Trade
Commission Western Region, (415-848-5100), 901 Market Street, Suite 570
San Francisco, CA 94103.
SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34,
notice is hereby given that the above-captioned consent agreement
containing 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 January 7, 2014), 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 February 6,
2014. Write ``L'Occitane, Inc.--Consent Agreement; File No. 122 3115''
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 privileged or confidential,'' as discussed 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/loccitaneconsent 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 ``L'Occitane, Inc.--
Consent Agreement; File No. 122 3115'' 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 consider and use in this proceeding as appropriate. The
Commission will consider all timely and responsive public comments that
it receives on or before February 6, 2014. 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 Proposed 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 L'Occitane, 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
``Almond Beautiful Shape'' and ``Almond Shaping Delight''
(collectively, ``the almond products'') by respondent. Respondent has
marketed the almond products to consumers through its retail stores and
Web site, and through third-party retail outlets.
The almond products are skin creams that contain almond extracts
and other ingredients. According to the FTC complaint, respondent
promoted the almond products as able to slim and reshape the body.
Specifically, the FTC complaint alleges that respondent
represented, in various advertisements, that topical use of Almond
Beautiful Shape trims 1.3
[[Page 2670]]
inches from the user's thighs in just four weeks; topical use of Almond
Beautiful Shape significantly slims the user's thighs and buttocks;
topical use of Almond Beautiful Shape significantly reduces cellulite;
and topical use of Almond Shaping Delight significantly slims the body
in just four weeks. The complaint alleges that these claims are
unsubstantiated and thus violate the FTC Act. The complaint also
alleges that respondent represented, in various advertisements, that
scientific tests prove that topical use of Almond Beautiful Shape trims
1.3 inches from the user's thighs in just four weeks; scientific tests
prove that topical use of Almond Beautiful Shape significantly reduces
cellulite; and scientific tests prove that Almond Shaping Delight
significantly slims the body in just four weeks. The complaint alleges
that these claims are false and thus violate 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 the almond
products or any other topically applied product causes substantial
weight or fat loss or a substantial reduction in body size. Part I of
the order is designed to fence in respondent by ensuring that extreme,
scientifically unfeasible claims will not be made in the future.
Part II addresses the slimming claims at issue in this matter. It
covers any representation, other than representations covered under
Part I, that a drug or cosmetic causes weight or fat loss or a
reduction in body size. Part II prohibits 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 any
representation, other than representations covered under Parts I or II,
that use of a drug or cosmetic reduces or eliminates cellulite or
affects body fat or weight, 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 addresses the allegedly false claims
that scientific tests prove that topical use of Almond Beautiful Shape
trims 1.3 inches from the user's thighs in just four weeks; scientific
tests prove that topical use of Almond Beautiful Shape significantly
reduces cellulite; and scientific tests prove that Almond Shaping
Delight significantly slims the body in just four weeks. Part IV
prohibits respondent, when advertising any product, from
misrepresenting the existence, contents, validity, results,
conclusions, or interpretations of any test, study, or research, or
misrepresenting that the benefits of the product are scientifically
proven.
Part V 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 VII of the proposed order requires respondent to pay four
hundred and fifty thousand dollars ($450,000) to the Commission to be
used for equitable relief, including restitution, and any attendant
expenses for the administration of such equitable relief. To facilitate
the payment of redress, Part VI of the proposed order requires
L'Occitane to provide to the Commission a searchable electronic file
containing the name and contact information of all consumers who
purchased the almond products from March 19, 2012 through the date of
entry of the order.
Parts VIII, IX, X, and XI 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 XII 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.
Statement of Chairwoman Edith Ramirez and Commissioner Julie Brill
We write to explain our support for the remedy imposed against
respondents GeneLink, Inc. and foru International Corporation, which we
believe to be amply supported by the relevant facts. In this, as in all
of the Commission's advertising actions alleging deceptive health
claims, the Commission has called for, as proposed relief, a level of
substantiation that is grounded in concrete scientific evidence and
reasonably tailored to ensure that the conduct giving rise to the
violation ceases and does not recur, among other important remedial
goals. In our view, the remedy adopted here accomplishes just that,
without imposing undue costs on marketers or consumers more generally.
Respondents market and sell genetically customized nutritional
supplements and topical skin products. As described in the complaint,
this enforcement action stems from claims made by respondents in
promotional materials and through testimonials that their products
compensate for consumers' ``genetic disadvantages'' and cure or treat
serious conditions such as diabetes, heart disease, and arthritis. In a
newsletter, for example, respondents represented their products had
cured ``a serious diabetic and cardiac patient,'' and an affiliate's
Web site stated that the products produced ``improvements in everything
from blood pressure to eczema to hormonal issues to arthritis.'' \1\
The Commission alleges that
[[Page 2671]]
respondents lacked adequate substantiation for these claims and that
they falsely represented that the products' benefits were
scientifically proven.
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\1\ Compl. Exs. G and H.
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Disease treatment claims such as these require a rigorous level of
substantiation. Based on evidence from genetics and nutritional
genomics experts, the Commission has reason to believe that well-
controlled human clinical trials (referred to here as ``randomized
controlled trials'' or ``RCTs'') are needed to substantiate
respondents' claims and that the studies relied on by respondents to
back up their claims fall far short of this evidence. Because
respondents lacked even one valid RCT for their products, it was
unnecessary for the Commission to decide, for purposes of assessing
liability, the precise number of RCTs needed to substantiate their
claims.
In fashioning an appropriate remedy, however, we are requiring that
respondents have at least two RCTs before making disease prevention,
treatment, and diagnosis claims. We have the discretion to issue orders
containing ``fencing-in'' provisions--``provisions . . . that are
broader than the conduct that is declared unlawful.'' Telebrands Corp.
v. FTC, 457 F.3d 354, 357 n.5 (4th Cir. 2006) (citation and internal
quotation marks omitted). Here, we believe that the two-RCT mandate is
appropriate and reasonably crafted to prevent the recurrence of
respondents' alleged unlawful conduct. This requirement conforms to
well-recognized scientific principles favoring replication of study
results to establish a causal relationship between exposure to a
substance and a health outcome. See, e.g., Thompson Med. Co., 104
F.T.C. 648, 720-21, 825 (1984) (requiring two RCTs to support claims of
arthritis pain relief and thereby affirming determination that
``[r]eplication is necessary because there is a potential for
systematic bias and random error in any clinical trial''), aff'd, 791
F.2d 189 (D.C. Cir. 1986).\2\ It also provides clear rules for
respondents, facilitating the setting of future research and marketing
agendas, and preserves law enforcement resources by minimizing future
argument over the quantity and quality of substantiation needed for the
most serious health claims about respondents' products. Moreover, the
deceptive claims alleged in the complaint are the type of significant
violations of law for which fencing-in relief is more than justified as
an additional safeguard against potential recidivism. See, e.g., id. at
834 (ruling that deceptive health claims about topical analgesic for
arthritis pain warranted fencing-in, and noting that the seriousness of
the violations was ``affected by the fact that consumers could not
readily judge the truth or falsity of the claims'').
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\2\ See also Geoffrey Marczyk et al., Essentials of Research
Design and Methodology 15-16 (2005) (``The importance of replication
in research cannot be overstated. Replication serves several
integral purposes, including establishing the reliability (i.e.,
consistency) of the research study's findings and determining . . .
whether the results of the original study are generalizable to other
groups of research participants.'').
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While not taking issue with respondents' liability as alleged in
the Commission's complaint, Commissioner Ohlhausen objects to the
Commission's decision to require, as a remedial matter, that
respondents have at least two RCTs before representing that their
genetic products can cure, treat, diagnose, or prevent a disease. In
addition to arguing that the two-RCT requirement is ``unduly high,''
Commissioner Ohlhausen expresses concern that these and other recent
Commission orders may lead advertisers in general to believe that they
too must invariably have two RCTs to substantiate health and disease
claims for a variety of products, leading them to forgo otherwise
adequately substantiated claims and depriving consumers of potentially
useful information.\3\ We respectfully disagree.
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\3\ Statement of Commissioner Maureen K. Ohlhausen, Dissenting
in Part and Concurring in Part [hereinafter Ohlhausen Statement] at
1. In her Statement, Commissioner Ohlhausen also references various
weight-loss related enforcement actions announced today by the
Commission, including FTC v. Sensa Products, LLC. Her objections,
however, center on the remedy imposed in this matter.
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There is nothing in our action today that amounts to the imposition
of a ``de facto two-RCT standard on health- and disease-related
claims.'' \4\ In this and other recent enforcement actions, the
Commission has consistently adhered to its longstanding view that the
proper level of substantiation for establishing liability is a case-
specific factual determination as to what constitutes competent and
reliable scientific evidence for the advertising claims at issue.\5\
The same fact-specific approach has guided the Commission's remedial
standards. Recent Commission consent orders concerning different types
of health claims have variously required two RCTs,\6\ one RCT,\7\ or
more generally defined ``competent and reliable scientific evidence.''
\8\ Against this backdrop, we are not persuaded that by requiring two
RCTs as a remedial matter here, the Commission will create a
misperception among advertisers about the substantiation standards that
govern liability for deceptive advertising.\9\ However, to the extent
other marketers look to our orders for signals as to the type of
backing required for disease treatment claims, we prefer that they
understand that serious claims like those made by respondents must have
hard science behind them.
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\4\ Ohlhausen Statement at 3.
\5\ See, e.g., Bristol Meyers Co., 102 F.T.C. 21, 332-38 (1983),
aff'd, 738 F.2d 554 (2d Cir. 1984); FTC, Dietary Supplements: An
Advertising Guide for Industry 10 (Apr. 2001) [hereinafter Dietary
Supplements Advertising Guide] (``When no specific claim about the
level of support is made, the evidence needed depends on the nature
of the claim. A guiding principle for determining the amount and
type of evidence that will be sufficient is what experts in the
relevant area of study would generally consider to be adequate.'').
\6\ See, e.g., FTC v. Skechers U.S.A., Inc., No. 1:12-cv-01214-
JG (N.D. Ohio July 12, 2012) (prohibiting, as a remedial matter,
weight loss claims without two RCTs); FTC v. Labra, No. 11 C 2485
(N.D. Ill. Jan. 11, 2012) (same); FTC v. Iovate Health Scis. USA,
Inc., No. 10-cv-587 (W.D.N.Y. July 29, 2010) (same); Nestl[eacute]
Healthcare Nutrition, Inc., 151 F.T.C. 1 (2011) (requiring two RCTs
for claims that any probiotic drink or certain nutritionally
complete drinks reduce the duration of acute diarrhea in children or
absences from daycare or school due to illness).
\7\ See, e.g., FTC v. Skechers U.S.A., Inc., No. 1:12-cv-01214-
JG (N.D. Ohio July 12, 2012) (prohibiting muscle strengthening
claims for any footwear product without one RCT); FTC v. Reebok
Int'l Ltd., No. 1:11-cv-02046-DCN (N.D. Ohio Sept. 29, 2011) (same).
\8\ See, e.g., NBTY, Inc., 151 F.T.C. 201 (2011) (requiring
marketer of vitamins to possess ``competent and reliable scientific
evidence'' for any claim about the health benefits, performance, or
efficacy of any product).
\9\ Moreover, as Commissioner Ohlhausen notes, Ohlhausen
Statement at 2 n.7, there may be some instances in which the medical
community would not require RCTs to demonstrate that a substance
treats, prevents, or reduces the risk of a disease. See, e.g.,
Dietary Supplements Advertising Guide, supra note 5, at 11
(explaining that an appropriately qualified claim based on
epidemiological evidence would be permitted where ``[a] clinical
intervention trial would be very difficult and costly to conduct,''
``experts in the field generally consider epidemiological evidence
to be adequate'' and there is no ``stronger body of contrary
evidence''). But, contrary to Commissioner Ohlhausen's contention,
the link between folic acid and neural tube birth defects was
substantiated using a combination of RCTs and observational
epidemiological evidence, as indicated by the articles she cites.
See, e.g., Walter C. Willett, Folic Acid and Neural Tube Defect:
Can't We Come to Closure?, 82 Am. J. Pub. Health 666, 667 (1992).
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We also disagree that the proposed remedy will deny consumers
access to useful information about new areas of science. The value of
information naturally depends on its accuracy.\10\ As
[[Page 2672]]
the DC Circuit has emphasized, ``misleading advertising does not serve,
and, in fact, disserves, th[e] interest'' of ``consumers and society .
. . in the free flow of commercial information.'' FTC v. Brown &
Williamson Tobacco Corp., 778 F.2d 35, 43 (D.C. Cir. 1985) (citation
and internal quotation marks omitted). If respondents wish to rely on
emerging science, they can qualify their claims accordingly. Properly
qualified claims are lawful and permissible under our proposed orders.
See Proposed Consent Orders, Part III.
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\10\ In some instances, ``emerging'' scientific evidence has
been subsequently contradicted by further research, leading to
consumer confusion and potential physical and financial harm. See,
e.g., Eric A. Klein et al., Vitamin E and the Risk of Prostate
Cancer, The Selenium and Vitamin E Cancer Prevention Trial (SELECT),
306 J. Am. Med. Ass'n 1549, 1551 (2011) (reporting that a 2008
randomized, placebo-controlled prospective clinical trial of over
35,000 men contradicted ``considerable preclinical and
epidemiological evidence that selenium and vitamin E may reduce
prostate cancer risk,'' and that follow-up observational data from
2011 showed a statistically significant increase in prostate cancer
in the vitamin E group over placebo).
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The fact that the ingredients in respondents' products are safe
also does not alter our conclusion. Consumers who rely on respondents'
claims may forgo important diet and lifestyle changes that are known to
reduce the risk of diabetes, heart disease, or arthritis. Or they may
forgo treatments that, unlike respondents' products, have been
demonstrated to be effective. In addition, respondents charge a
premium, over $100 per month, for their customized products. Consumers,
therefore, may be deceived both to their medical and economic detriment
when a safe product provides an ineffective treatment. See FTC v. QT,
Inc., 512 F.3d 858, 863 (7th Cir. 2008) (safe but deceptively
advertised treatment ``will lead some consumers to avoid treatments
that cost less and do more; the lies will lead others to pay too much
for [treatment] or otherwise interfere with the matching of remedies to
medical conditions''); Pfizer Inc., 81 F.T.C. 23, 62 (1972) (``A
consumer should not be compelled to enter into an economic gamble to
determine whether a product will or will not perform as
represented.''). Unsubstantiated disease claims also harm honest
competitors that expend considerable resources on studies or analyses
of the existing science and conform their advertising claims
accordingly. Allowing companies to rely on ``emerging'' evidence to
support disease claims merely because the products in question are safe
would risk a ``race to the bottom''--the proliferation of progressively
more egregious disease claims, which would harm both legitimate
competitors and consumers in the process.
Finally, Commissioner Ohlhausen argues that requiring the RCTs to
be conducted by different researchers working independently of each
other imposes undue burdens in the absence of evidence that a defendant
has fabricated or interfered with a study or its results.\11\ This
requirement is an important safeguard that lessens the likelihood that
researcher bias will affect the outcome of a study and helps ensure
that the results are replicable.\12\
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\11\ Ohlhausen Statement at 2-3.
\12\ Commissioner Ohlhausen also objects to the Part I
requirement that testing be conducted on the product about which the
advertising claim is made or an ``essentially equivalent product,''
arguing that the order should authorize ``claims regarding
individual ingredients in combined products as long as claims for
each ingredient are properly substantiated and there are no known
interactions.'' Ohlhausen Statement at 3. In fact, the orders permit
that very thing. If there is reliable evidence that the additional
ingredients will not interact with the tested product in a way that
impacts efficacy, the orders do not require testing of the combined
product. See Proposed Consent Orders at 3 (defining ``Essentially
Equivalent Product'' to permit additional ingredients, beyond those
in the tested product, if ``reliable scientific evidence generally
accepted by experts in the field demonstrates that the amount and
combination of additional ingredients [in the respondent's product]
is unlikely to impede or inhibit the effectiveness of the
ingredients in the [tested product]'').
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In short, we believe the relief obtained by the Commission in this
settlement is warranted and strikes the right balance between the need
for accuracy in health-related advertising claims and the burden placed
on respondents.
Statement of Commissioner Maureen K. Ohlhausen Dissenting In Part and
Concurring In Part
I strongly support the Commission's enforcement efforts against
false and misleading advertisements and therefore have voted in favor
of the consent agreements with Sensa Products, LLC; HCG Diet Direct,
LLC; L'Occitane, Inc.; and LeanSpa, LLC, despite having some concerns
about the scope of the relief in several of these weight-loss related
matters. I voted against the consent agreements in the matter of
GeneLink, Inc. and foru International Corporation, however, because
they impose an unduly high standard of at least two randomized
controlled trials (or RCTs) to substantiate any disease-related claims,
not just weight-loss claims. Adopting a one-size-fits-all approach to
substantiation by imposing such rigorous and possibly costly
requirements for such a broad category of health- and disease-related
claims \1\ may, in many instances, prevent useful information from
reaching consumers in the marketplace and ultimately make consumers
worse off.\2\
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\1\ This provision may apply quite broadly in practice given the
Commission majority's conclusion in our POM Wonderful decision that
many of the claims involving the continued healthy functioning of
the body also conveyed implied disease-related claims. See POM
Wonderful, LLC, No. 9344, 2013 WL 268926 (F.T.C. Jan. 16, 2013).
\2\ To be clear, however, I am not advocating in favor of
permitting ``unsubstantiated disease claims,'' as suggested in the
statement of Chairwoman Ramirez and Commissioner Brill. Rather, I am
suggesting that consumers would on balance be better off if we
clarified that our requirements permit a variety of health- or
disease-related claims about safe products, such as foods or
vitamins, to be substantiated by competent and reliable scientific
evidence that might not comprise two RCTs.
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The Commission has traditionally applied the Pfizer \3\ factors to
determine the appropriate level of substantiation required for a
specific advertising claim. These factors examine the nature of the
claim and the type of product it covers, the consequences of a false
claim, the benefits of a truthful claim, the cost of developing the
required substantiation for the claim, and the amount of substantiation
experts in the field believe is reasonable for such a claim.\4\ One of
the goals of the Pfizer analysis is to balance the value of greater
certainty of information about a product's claimed attributes with the
risks of both the product itself and the suppression of potentially
useful information about it. Under such an analysis, the burden for
substantiation for health- or disease-related claims about a safe
product, such as a food, for example, should be lower than the burdens
imposed on drugs and biologics because consumers face lower risks when
consuming the safe product.\5\
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\3\ Pfizer, Inc., 81 F.T.C. 23 (1972).
\4\ Id. at 91-93; see also FTC Policy Statement Regarding
Advertising Substantiation, 104 F.T.C. 839 (1984) (appended to
Thompson Med. Co., 104 F.T.C. 648, 839 (1984)).
\5\ The FDA designates most food ingredients as GRAS (generally
recognized as safe). 21 CFR 170.30. Vitamins and minerals are
treated as foods by the FDA and are also GRAS. See FDA Guidance for
Industry: Frequently Asked Questions about GRAS (Dec. 2004),
available at https://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/IngredientsAdditivesGRASPackaging/ucm061846.htm#Q1. As a result,
food ingredients, vitamins, and minerals can be combined and sold to
the public without direct evidence on the particular combination
realized in the new product. Many products are made up of several
common generic ingredients, for which there is little financial
incentive to test individually or to retest in each particular
combination.
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Recently, however, Commission orders, including the ones in the
matter of GeneLink and foru International, seem to have adopted two
RCTs as a standard requirement for health- and disease-related claims
for a wide array of products.\6\ RCTs can be difficult to
[[Page 2673]]
conduct and are often costly and time-consuming relative to other types
of testing, particularly for diseases that develop over a long period
of time or complex health conditions. Requiring RCTs may be appropriate
in some circumstances, such as where use of a product carries some
significant risk, or where the costs of conducting RCTs may be
relatively low, such as for conditions whose development or
amelioration can be observed over a short time period. Thus, I am
willing to support the order requirement of two RCTs for short-term
weight loss claims in the Sensa, HCG Diet Direct, L'Occitane, and
LeanSpa matters because such studies can be conducted in a relatively
short amount of time at a lower cost than for many other health claims.
My concern with GeneLink and foru International and the series of
similar orders is that they might be read to imply that two RCTs are
required to substantiate any health- or disease-related claims, even
for relatively-safe products. It seems likely that producers may forgo
making such claims about these kinds of products, even if they may
otherwise be adequately supported by evidence that does not comprise
two RCTs.\7\
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\6\ The orders in this matter include as a Covered Product any
food, drug, or cosmetic that is genetically customized or
personalized for a consumer or that is promoted to modulate the
effect of genes. Other cases requiring two RCTs are POM Wonderful
LLC, Docket No. 9344 (F.T.C. Jan. 10, 2013) (fruit juice); Dannon
Co., Inc., 151 F.T.C. 62 (2011) (yogurt); Nestl[eacute] Healthcare
Nutrition, Inc., 151 F.T.C. 1 (2011) (food); FTC v. Iovate Health
Sci. USA, Inc., No. 10-cv-587 (W.D.N.Y. July 29, 2010) (dietary
supplement).
\7\ Notably, the medical community does not always require RCTs
to demonstrate the beneficial effects of medical and other health-
related innovations. For example, the recommendation that women of
childbearing age take a folic acid supplement to reduce the risk of
neural tube birth defects was made without RCT evidence on the
relevant population. See Walter C. Willett, ``Folic Acid and Neural
Tube Defect: Can't We Come to Closure?'' American Journal of Public
Health, May 1992, Vol. 82, No. 5; Krista S. Crider, Lynn B. Bailey
and Robert J. Berry, ``Folic Acid Food Fortification--Its History,
Effect, Concerns, and Future Directions,'' Nutrients 2011, Vol. 3,
370-384.
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Although raising the requirement for both the number and the rigor
of studies required for substantiation for all health- or disease-
related claims may increase confidence in those claims, the
correspondingly increased burdens in time and money in conducting such
studies may suppress information that would, on balance, benefit
consumers. If we demand too high a level of substantiation in pursuit
of certainty, we risk losing the benefits to consumers of having access
to information about emerging areas of science and the corresponding
pressure on firms to compete on the health features of their products.
In my view, the Commission should apply the Pfizer balancing test in a
more finely calibrated manner than they have in the GeneLink and foru
International orders to avoid imposing ``unduly burdensome restrictions
that might chill information useful to consumers in making purchasing
decisions.'' \8\
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\8\ FTC Staff Comment Before the Food and Drug Administration In
the Matter of Assessing Consumer Perceptions of Health Claims,
Docket No. 2005N-0413 (2006), available at https://www.ftc.gov/be/V060005.pdf.
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In addition, based on the same concerns about imposing
unnecessarily burdensome and costly obligations, I do not support a
general requirement that all products be tested by different
researchers working independently without an indication that the
defendant fabricated or otherwise interfered with a study or its
results.\9\ Where defendants have fabricated results, as our complaint
against Sensa alleges, a requirement of independent testing may be
appropriate, but a simple failure to have adequate substantiation
should not automatically trigger such an obligation. In other cases,
where there is some concern about a sponsor or researcher biasing a
study, our orders may address this in a less burdensome way by
requiring the producer making the disease-related claims to provide the
underlying testing data to substantiate its claims, which we can
examine for reliability. Similarly, the requirement to test an
``essentially equivalent product,'' which appears to be more rigorous
than FDA requirements for food and supplement products, can
significantly and unnecessarily increase the costs of substantiation,
again potentially depriving consumers of useful information. Instead,
Commission orders should clearly allow claims regarding individual
ingredients in combined products as long as claims for each ingredient
are properly substantiated and there are no known relevant
interactions.\10\
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\9\ The FDA does not require independent testing for clinical
investigational studies of medical products, including human drug
and biological products or medical devices, and it permits sponsors
to use a variety of approaches to fulfill their responsibilities for
monitoring. See FDA Guidance for Industry Oversight of Clinical
Investigations--A Risk-Based Approach to Monitoring (Aug. 2013),
available at https://www.fda.gov/downloads/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/UCM269919.pdf.
\10\ Although the statement by Chairwoman Ramirez and
Commissioner Brill asserts that the orders in GeneLink and foru
International permit claims for individual ingredients in combined
products as long as the claims for each ingredient are properly
substantiated and there are no known interactions, the orders
actually require that ``reliable scientific evidence generally
accepted by experts in the field demonstrate that the amount and
combination of additional ingredients is unlikely to impede or
inhibit the effectiveness of the ingredients in the Essentially
Equivalent Product.'' Decision and Order at 2, In the Matter of
GeneLink, Inc. FTC File No. 112 3095 (emphasis added). My point is
that the FDA does not require direct evidence regarding combinations
of individual ingredients deemed GRAS but the order on its face
requires scientific evidence demonstrating the effect of such
combinations.
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It is my hope and recommendation that as we consider future cases
involving health- and disease-related claims, the Commission and its
staff engage in a further dialogue about our substantiation
requirements to discern how best to assess the potential costs and
benefits of allowing different types of evidence that might provide a
reasonable basis to substantiate such claims. Although I am willing to
support liability for failures to have adequate substantiation for
health- and disease-related claims under certain circumstances, I am
not willing to support a de facto two-RCT standard on health- and
disease-related claims for food or other relatively-safe products.
Statement of Commissioner Joshua D. Wright
Today the Commission announces five settlements involving the
deceptive marketing of a variety of nutritional and dietary
supplements, skincare products, and weight-loss remedies. While the
course of business conduct, type of product and particular advertising
claim at issue in each case differs, all share one common
characteristic--the Commission has alleged that, in the course of
advertising their products, each of these defendants has made false or
unsubstantiated claims about the treatment of certain medical or health
conditions.
Cases that challenge false or unsubstantiated claims--especially
those involving serious medical conditions--are an important component
of our agency's mission to protect consumers from economic injury.
Indeed, the aggregate consumer injury in these particular matters is
estimated to be $420 million and these settlement agreements will
return approximately $33 million to consumers. I fully support the
Commission's efforts to deter deceptive advertising and voted in favor
of authorizing these particular settlements.
In crafting remedial relief in these cases, the Commission
inevitably faces a tradeoff between deterring deceptive advertising and
preserving the benefits to competition and consumers from truthful
claims. Tailoring remedial relief--including the level of
substantiation required--to the specific claims at issue is in the best
interests of consumers.\1\ I write today to express some of my views on
this issue.
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\1\ The Commission's determination of whether an advertiser has
adequate substantiation in the first instance depends upon ``a
number of factors relevant to the benefits and costs of
substantiating a particular claim. These factors include: the type
of claim, the product, the consequences of a false claim, the
benefits of a truthful claim, the cost of developing substantiation
for the claim, and the amount of substantiation experts in the field
believe is reasonable.'' FTC Policy Statement Regarding Advertising
Substantiation, appended to Thompson Medical Co., 104 F.T.C. 648,
839 (1984), aff'd, 791 F.2d 189 (D.C. Cir. 1986), cert. denied, 479
U.S. 1086 (1987). Formulating the required level of substantiation
for injunctive relief should necessarily be grounded in the factors
set forth in this policy statement, although additional
considerations might also be relevant.
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Each of the consent agreements announced today includes injunctive
relief provisions requiring the settling parties to satisfy a standard
of ``competent and reliable scientific evidence'' before again making
the claims at issue. Each consent agreement further defines ``competent
and reliable scientific evidence'' as requiring, among other things,
two adequate and well-controlled human clinical studies (randomized
controlled trials or RCTs) of the product. I encourage the Commission
to explore more fully whether the articulation and scope of injunctive
relief in these and similar settlements strikes the right balance
between deterring deceptive advertising and preserving for consumers
the benefits of truthful claims. The optimal amount and type of
evidence to substantiate a future claim will vary from case to case.
Similarly, a fact-specific inquiry may justify specially crafted
injunctive relief in certain cases, such as bans, performance bonds or
document retention requirements for underlying study data. I look
forward to working with my fellow Commissioners to continue to examine
and evaluate our formulation of the competent and reliable scientific
evidence standard, as well as the ancillary injunctive provisions in
consent agreements, in order to best protect consumers from the costs
imposed upon them by deceptive advertising while encouraging
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competition and truthful advertising that benefits consumers.
[FR Doc. 2014-00560 Filed 1-14-14; 8:45 am]
BILLING CODE 6750-01-P