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Daryl C. Jenks, d/b/a Premium Essiac Tea 4less; Analysis of Proposed Consent Order to Aid Public Comment

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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 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 October 17, 2008.

ADDRESSES:

Interested parties are invited to submit written comments. Comments should refer to “Daryl C. Jenks, File No. 082 3116,” to facilitate the organization of comments. A comment filed in paper form should include this reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission/Office of the Secretary, Room 135-H, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. Comments containing confidential material must be filed in paper form, must be clearly labeled “Confidential,” and must comply with Commission Rule 4.9(c). 16 CFR 4.9(c) (2005).[1] The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible, because U.S. postal mail in the Washington area and at the Commission is subject to delay due to heightened security precautions. Comments that do not contain any nonpublic information may instead be filed in electronic form by following the instructions on the web-based form at (http://secure.commentworks.com/​ftc-DarylCJenks). To ensure that the Commission considers an electronic comment, you must file it on that web-based form.

The Federal Trade Commission Act (“FTC Act”) and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives, whether filed in paper or electronic form. Comments received will be available to the public on the FTC website, to the extent practicable, at (http://www.ftc.gov/​os/​publiccomments.shtm). As a matter of discretion, the Commission makes every effort to remove home contact information for individuals from the public comments it receives before placing those comments on the FTC website. More information, including routine uses permitted by the Privacy Act, may be found in the FTC’s privacy policy, at (http://www.ftc.gov/​ftc/​privacy.shtm)

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FOR FURTHER INFORMATION CONTACT:

Richard Cleland, FTC Bureau of Consumer Protection, 600 Pennsylvania Avenue, NW, Washington, D.C. 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(f), and § 2.34 of the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for September 18, 2008), on the World Wide Web, at (http://www.ftc.gov/​os/​2008/​09/​index.htm). A paper copy can be obtained from the FTC Public Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580, either in person or by calling (202) 326-2222.

Public comments are invited, and may be filed with the Commission in either paper or electronic form. All comments should be filed as prescribed in the ADDRESSES section above, and must be received on or before the date specified in the DATES section.

Analysis of Agreement Containing Consent Order to Aid Public Comment

The Federal Trade Commission has accepted, subject to final approval, an agreement containing a consent order from Daryl C. Jenks, individually, and d/b/a Premium Essiac Tea 4less (“respondent”).

The proposed consent order has been placed on the public record for thirty (30) days for reception of comments by interested persons. Comments received during ths period will become par of the public record. Afer 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 concerns the advertising and promotion of a product known as Premium Essiac Tea, a powder for mag a tea beverage that, according to its label, contains. burdock root, rhubarb root, sheep sorrel, slippery elm, watercress, blessed thistle, red clover, and kelp.

The Commission's complaint charges that respondent claimed that Premium Essiac Tea was effective to treat, prevent or cure cancer and other serious diseases. The complaint alleges that respondent did not have a reasonable basis for ths claim. The complaint also charges that respondent claimed that Premium Essiac Tea was clinically proven to be superior to other types of essiac tea. The complaint alleges that ths claim was false. The proposed consent order contains provisions designed to prevent respondent from engaging in similar acts and practices in the future.

Part I requires respondent to have competent and reliable scientific evidence substantiating any claim that any covered product or service is effective in the treatment, cure or prevention of any disease or condition, or is superior to other similar products or services. A “covered product or service” is defined as any food, dietary supplement or drug, including, but not limited to any essiac tea product; or any health-related product, service or program.

Part II requires that any future claim about the absolute or comparative benefits, performance, efficacy, safety or side effects of any covered product or service be truth and supported by competent and reliable scientific evidence.

Part III of the consent order prohibits the misrepresentation of the results of any test, study or research in connection with the advertising, promotion or sale of any covered product or service. Start Printed Page 57628

Part IV of the proposed order provides that the order does not prohibit respondent from making representations for any drug that are permitted in labeling for the drug under any tentative or final Food and Drug Administration (“FDA”) standard or under any new drug application approved by the FDA; and representations for any product that are specifically permitted in labeling for that product by regulations issued by the FDA under the Nutrition Labeling and Education Act of 1990.

Part V.A. of the proposed order requires respondent to provide a list of all purchasers ofPremium Essiac Tea to the Commission. Part V.B. requires respondent to mail to each purchaser a letter describing the scientific evidence related to essiac tea. Part V.C. prohibits respondent from providing any identifying information about his purchasers to anyone other than a law enforcement agency or as required by law.

Parts VI though IX of the proposed order require respondent to keep copies of relevant advertisements and materials that substantiate claims made in the advertisements; to provide copies of the order to certain of his employees; to notify the Commission of any changes in employment that might affect compliance obligations under the order; and to file compliance reports with the Commission.

Part X provides that the order will terminate afer twenty (20) years under certain circumstances.

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

By direction of the Commission.

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Donald S. Clark,

Secretary.

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Footnotes

1. The comment must be accompanied by an explicit request for confidential treatment, including the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. The request will be granted or denied by the Commission’s General Counsel, consistent with applicable law and the public interest. See Commission Rule 4.9(c), 16 CFR 4.9(c).

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[FR Doc. E8-23325 Filed 10-2-08; 8:45 am]

BILLING CODE 6750-01-S