Announced Actions for December 23, 1998 [A]

The Federal Trade Commission today announced the following action.

Consent agreements given final approval: Following a public comment period, the Commission has made final a consent agreement with the following entity. The Commission action makes the consent order binding on the respondent.

• The Commission has made final separate consent orders with Del Pharmaceuticals, Pfizer Inc. and Care Technologies, Inc. that settle allegations the companies made false and unsubstantiated claims about its over-the-counter head lice treatments. Under the terms of the consent orders, Del, Pfizer and Care Technologies will be required for the next two years to make certain prominent disclosures in advertisements for their head lice treatment products. Also, in the final order against Del, the company will be prohibited from making claims about the extent to which health care, child care, or other medical professionals recommend or would recommend Baby Orajel, or any other topically applied oral cleanser, unless the company has adequate substantiation to support its claims.

The Commission votes to make the orders final were 4-0.

Commissioners Robert Pitofsky, Sheila Anthony and Mozelle Thompson issued a separate statement in which they said, “We write to express our views about the concerns Commissioner Swindle raises regarding the disclosure remedy in these cases. The orders require that, for two years, whenever a claim is made regarding the efficacy of the lice removal products, the respondents include a disclosure about the necessity for a second application of their product. The disclosure remedy in these cases is fencing-in relief, designed to prevent purchasers of respondents’ products from being deceived by future advertising. The triggered disclosure about the need for two treatments provides additional assurance that consumers will not be misled by future ads. We are satisfied that the triggered disclosures in these orders are appropriate and reasonable.”

In a separate statement Commissioner Orson Swindle expressed concern about the requirement that, for a period of two years, the respondents must disclose that two treatments are required whenever they make any efficacy claim for one of their lice treatment products. He explained that, even if this requirement was a triggered disclosure (as asserted by the majority) and not corrective advertising, it is unnecessary because other provisions in the order prevent the respondents from making the false or unsubstantiated claim that their lice products work in one treatment.

Commissioner Swindle also opined that the disclosure requirement is overbroad because it is triggered by any efficacy claim, even though some efficacy claims would not create the misimpression that lice products work in one treatment. Finally, he questioned why the Commission would terminate a triggered disclosure requirement after only two years if the requirement really is intended to prevent deception. (See news release dated September 18, 1998; FTC File Nos. Del, C-3837; Care Technologies, C- 3840; Pfizer, C-3841; Staff contact is Linda K. Badger or Kerry O’Brien, 415-356-5270.)

Copies of the documents referenced above are available from the FTC’s web site athttp://www.ftc.gov and also from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580; 202-FTC-HELP (202-382-4357); TDD for the hearing impaired 1-866-653-4261. To find out the latest news as it is announced, call the FTC NewsPhone recording at 202-326-2710.