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Michael D. Miller; Analysis To Aid Public Comment

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Information about this document as published in the Federal Register.

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AGENCY:

Federal Trade Commission.

ACTION:

Proposed Consent Agreement.

SUMMARY:

The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices or unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint that accompanies the consent agreement 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 May 5, 2000.

ADDRESSES:

Comments should be directed to: FTC/Office of the Secretary, Room 159, 600 Pennsylvania Ave., NW, Washington, DC 20580.

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FOR FURTHER INFORMATION CONTACT:

Richard Cleland, FTC/S-4002, 600 Pennsylvania Ave., NW, Washington, DC 20580. (202) 326-3088.

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SUPPLEMENTARY INFORMATION:

Pursuant to Section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Section 2.34 of the Commission's Rules of Practice (16 CFR 2.34), notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for April 5, 2000), on the World Wide Web, at “http://www.ftc.gov/​ftc/​formal.htm. A paper copy can be obtained from the FTC Public Reference Room, Room H-130, 600 Pennsylvania Avenue, NW, Washington, DC 20580, either in person or by calling (202) 326-3627.

Public comment is invited. Comments should be directed to: FTC/Office of the Secretary, Room 159, 600 Pennsylvania Ave., NW, Washington, DC 20580. Two paper copies of each comment should be filed, and should be accompanied, if possible, by a 31/2 inch diskette containing an electronic copy of the comment. Such comments or views will be considered by the Commission and will be available for inspection and Start Printed Page 19771copying at its principal office in accordance with Section 4.9(b)(6)(ii) of the Commission's Rules of Practice (16 CFR 4.9(b)(6)(ii)).

Analysis of Proposed Consent Order To Aid Public Comment

The Federal Trade Commission has accepted an agreement to a proposed consent order from Michael D. Miller, individually and doing business as Natural Heritage Enterprises (“Miller”).

The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and the comments received, and will decide whether it should withdraw from the agreement or make final the agreement's proposed order.

This matter involves alleged unsubstantiated representations that “Rene Caisse's Original Herbal Tea Remedy,” also known as “Rene Caisse's Essiac Tea” or “Essiac Tea” (“Essiac Tea”) is effective for treating or curing a number of diseases including, among others, cancer, leukemia, diabetes, and AIDS/HIV. The complaint alleges that these representations were made through the following means, taken together: The visible portion of Miller's Internet Web sites and in the metatags and mouseover text. In addition, according to the FTC complaint, through the visible portion of his Internet advertisements, Miller falsely represented that clinical evidence proves that Essiac Tea is an effective cancer cure; that “recommended [Web] sites” to which respondent's home page links are independent Web sites not associated with Miller or Natural Heritage; and, impliedly, that the experiences of persons giving testimonials are representative of the typical experience of those using the product.

The proposed consent order contains provisions designed to prevent Miller from engaging in similar acts and practices in the future.

Part I of the order prohibits Miller from representing, without competent and reliable scientific evidence substantiating the representation, that any Essiac product, service, or program, or any other food, drug, or dietary supplement, is effective in the treatment or cure of certain enumerated diseases; that the product, service, or program is effective in the mitigation, treatment, prevention, or cure of any disease or illness; or about the health benefits, performance, safety, or efficacy of any such product, service, or program.

Part II of the order provides that Miller shall not mispresent the connection or association between any Web site created and/or maintained by Miller and any other Web site, or the existence, contents, validity, results, conclusions, or interpretations of any test, study, or research.

Part III of the order provides that Miller shall not represent that the experience represented by any user testimonial or endorsement of the product, service, or program represents the typical or ordinary experience of members of the public who use the product, service, or program, unless the representation is substantiated or Miller discloses, clearly and prominently, in close proximity to the endorsement or testimonial, either what the generally expected results would be for users of the product, or the limited applicability of the endorser's experience to what consumers may generally expect to achieve.

Parts I, II, and III apply to representations that are either express or implied, and specifically apply to representations communicated in any manner, including claims made by means of meta tags or mouseover text.

Part IV of the order requires respondent to deliver to the Commission a list, in the form of a sworn affidavit, of all consumers who purchased an Essiac product from respondent on or after September 15, 1996, and to send to all such consumers, by first class mail, an exact copy of a notice with information about the scientific research on Essiac tea.

Part V of the order requires respondent to pay seventeen thousand five hundred dollars ($17,500) in redress. The funds paid by respondent, together with any accrued interest, shall, in the discretion of the Commission, be used by the Commission to provide direct redress to purchasers of an Essiac product in connection with the acts or practices alleged in the complaint, and to pay any attendant costs of administration; or, if the Commission determines, in its sole discretion, that redress to purchasers of this product is wholly or partially impracticable or is otherwise unwarranted, any funds not so used shall be paid to the United States Treasury.

Part IV of the order states that representation for any drug that is permitted in labeling for such drug under any tentative final or final standard promulgated by the Food and Drug Administration, or under any new drug application approved by the Food and Drug Administration, are not prohibited by the order. The order also does not prohibit respondent from making any representation for any product that is specifically permitted in labeling for such product by regulations promulgated by the Food and Drug Administration pursuant to the Nutrition Labeling and Education Act of 1990.

Parts VII-XII of the order require Miller to keep copies of relevant advertisements and materials substantiating or calling into question claims made in the advertisements; to provide copies of the order to certain of its personnel; to notify the Commission of changes in the company that may affect the order; to notify the Commission of his current address and employment status, and any changes in address or in employment status; and to file compliance reports with the Commission Part XIII provides that the order will terminate after twenty (20) years under certain circumstances.

The purpose of this analysis is to facilitate public comment on the proposed order, and it is not intended to constitute an official interpretation of the agreement and proposed order or to modify in any way their terms.

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By direction of the Commission.

Donald S. Clark,

Secretary.

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[FR Doc. 00-9076 Filed 4-11-00; 8:45 am]

BILLING CODE 6750-01-M