Announced Action for August 19, 2005

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Commission approval of proposed divestiture: The Commission approved an application for proposed divestiture by Cemex, S.A. de C.V. (Cemex) related to its recent acquisition of RMC Group PLC (RMC). Under the terms of the consent order allowing the acquisition, Cemex was required to divest RMC’s ready-mix concrete assets in the Tucson, Arizona, area to a Commission-approved buyer within six months of signing the order. Through this action, the Commission has approved Cemex’s divestiture of these assets to California Portland Cement Company. The Commission vote approving the divestiture was 4-0. (FTC File No. 051-0007, Docket No. C-4131; the staff contact is Elizabeth A. Piotrowski, Bureau of Competition, 202-326-2623; see press releases dated February 14 and June 10, 2005.)

Commission authorization of the staff to file amended complaint: The Commission has authorized the staff to file an amended complaint in the matter currently pending against Elite Designs, Inc. and Anthony Antonelli. The Commission’s original complaint in this matter, filed in February 2005 as part of the Project Biz Opp Flop law enforcement sweep, charged the defendants with several violations related to the FTC’s Franchise Rule through their selling of jewelry display rack business ventures. Through this action, to be filed by the U.S. Department of Justice (DOJ) on the Commission’s behalf, the FTC seeks to add The Designer Collection, Inc. as an additional defendant in this matter.

The Commission vote authorizing the DOJ to file the amended complaint on the FTC’s behalf was 4-0. (FTC File No. 052-3039; the staff contact is Michael Davis, Bureau of Consumer Protection, 202-326-2458; see press release dated February 22, 2005.)

Staff advisory opinion concerning the Non-Profit Institutions Act: The staff of the FTC’s Bureau of Competition has advised North Mississippi Health Services (NMHS) that its purchase of pharmaceuticals to be dispensed to patients treated at a non-profit clinic and at a non-profit hospice is covered by the Non-Profit Institutions Act (NPIA). That statute exempts from the Robinson-Patman Act “purchases of their supplies for their own use by schools, colleges, universities, public libraries, churches, hospitals, and charitable institutions not operated for profit.”

NMHS is a non-profit corporation currently buying pharmaceuticals at NPIA-reduced pricing from a drug wholesaler. NMHS pays a lower price for its pharmaceuticals than is currently available to the clinic and the hospice. It asked for an opinion on whether it can transfer these pharmaceuticals, at cost, to the clinic and the hospice, for those entities to use in the treatment of their patients.

The staff opinion letter, signed by David Pender, Acting Assistant Director of the Health Care Services and Products Division of the Bureau of Competition, concluded that pharmaceuticals used in the ways described in the request letter could be transferred by NMHS to the clinic and the hospice without violating the NPIA. The NPIA covers such transfers from one NPIA covered entity to another NPIA covered entity, so long as the transferred supplies are for the receiving institution’s “own use” within the meaning of the statute.

NOTE: The letter sets out the views of the staff of the FTC’s Bureau of Competition, as authorized by the Commission’s Rules of Practice. It has not been reviewed or approved by the Commission. As the Commission’s Rules explain, the staff’s advice is rendered “without prejudice to the right of the Commission later to rescind the advice and, where appropriate, to commence an enforcement proceeding.” (The staff contact is Ellen Connelly, Bureau of Competition, 202-326-2532.)

Copies of the documents mentioned in this release are available from the FTC’s Web site at and also from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, DC 20580. Call toll-free: 1-877-FTC-HELP.

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