Bumble Bee Seafoods, Inc. - Consent Agreement

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION

In the Matter of

BUMBLE BEE SEAFOODS, INC., a corporation.

FILE NO. 982 3560

AGREEMENT CONTAINING CONSENT ORDER

The Federal Trade Commission has conducted an investigation of certain acts and practices of Bumble Bee Seafoods, Inc., a corporation ("proposed respondent"). Proposed respondent, having been represented by counsel, is willing to enter into an agreement containing a consent order resolving the allegations contained in the attached draft complaint. Therefore,

IT IS HEREBY AGREED by and between Bumble Bee Seafoods, Inc., by its duly authorized officer, and counsel for the Federal Trade Commission ("Commission") that:

1. Proposed respondent Bumble Bee Seafoods, Inc. ("Bumble Bee") is a Delaware corporation with its principal office or place of business at 3990 Ruffin Road, San Diego, CA 92123.

2. Proposed respondent admits all the jurisdictional facts set forth in the draft complaint.

3. Proposed respondent waives:

a. Any further procedural steps;

b. The requirement that the Commission's decision contain a statement of findings of fact and conclusions of law; and

c. All rights to seek judicial review or otherwise to challenge or contest the validity of the order entered pursuant to this agreement.

4. This agreement shall not become part of the public record of the proceeding unless and until it is accepted by the Commission. If this agreement is accepted by the Commission, it, together with the draft complaint, will be placed on the public record for a period of sixty (60) days and information about it publicly released. The Commission thereafter may either withdraw its acceptance of this agreement and so notify proposed respondent, in which event it will take such action as it may consider appropriate, or issue and serve its complaint (in such form as the circumstances may require) and decision in disposition of the proceeding.

5. This agreement is for settlement purposes only and does not constitute an admission by proposed respondent that the law has been violated as alleged in the draft complaint, or that the facts as alleged in the draft complaint, other than the jurisdictional facts, are true.

6. This agreement contemplates that, if it is accepted by the Commission, and if such acceptance is not subsequently withdrawn by the Commission pursuant to the provisions of Section 2.34 of the Commission's Rules, the Commission may, without further notice to proposed respondent, (1) issue its complaint corresponding in form and substance with the attached draft complaint and its decision containing the following order in disposition of the proceeding, and (2) make information about it public. When so entered, the order shall have the same force and effect and may be altered, modified, or set aside in the same manner and within the same time provided by statute for other orders. The order shall become final upon service. Delivery of the complaint and the decision and order to proposed respondent by any means specified in Section 4.4 of the Commission's Rules shall constitute service. Proposed respondent waives any right it may have to any other manner of service. The complaint may be used in construing the terms of the order. No agreement, understanding, representation, or interpretation not contained in the order or in the agreement may be used to vary or contradict the terms of the order.

7. Proposed respondent has read the draft complaint and consent order. Proposed respondent understands that it may be liable for civil penalties in the amount provided by law and other appropriate relief for each violation of the order after it becomes final.

ORDER

DEFINITIONS

For purposes of this order, the following definitions shall apply:

1. Unless otherwise specified, "respondent" shall mean Bumble Bee Seafoods, Inc., a corporation, its successors and assigns and its officers; and each of the above's agents, representatives, and employees.

2. "Rebate" shall mean cash, merchandise, credit towards future purchases, or any other consideration offered to consumers who purchase products or services from respondent, which is provided subsequent to the purchase.

3. "Clearly and prominently" shall mean as follows:

A. In an advertisement communicated through an electronic medium (such as television, video, radio, and interactive media such as the Internet and online services), the disclosure shall be presented simultaneously in both the audio and video portions of the advertisement. Provided, however, that in any advertisement presented solely through video or audio means, the disclosure may be made through the same means in which the advertisement is presented. The audio disclosure shall be delivered in a volume and cadence sufficient for an ordinary consumer to hear and comprehend it. The video disclosure shall be of a size and shade, and shall appear on the screen for a duration sufficient for an ordinary consumer to read and comprehend it. In addition to the foregoing, in interactive media the disclosure shall also be unavoidable and shall be presented prior to the consumer incurring any financial obligation.

B. In a print advertisement, promotional material, or instructional manuals, the disclosure shall be in a type size and location sufficiently noticeable for an ordinary consumer to read and comprehend it, in print that contrasts with the background against which it appears. In multi-page documents, the disclosure shall appear on the cover or, alternatively, on the first page.

C. On a product label, the disclosure shall be in a type size and location on the principal display panel sufficiently noticeable for an ordinary consumer to read and comprehend it, in print that contrasts with the background against which it appears. The disclosure shall be in understandable language and syntax. Nothing contrary to, inconsistent with, or in mitigation of the disclosure shall be used in any advertisement or on any label.

4. "Commerce" shall mean as defined in Section 4 of the Federal Trade Commission Act, 15 U.S.C. § 44.

IT IS ORDERED that respondent, directly or through any corporation, subsidiary, division, or other device, in connection with the manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of any product or service in or affecting commerce, shall:

A. Not misrepresent, in any manner, expressly or by implication, the terms or conditions of any rebate offer; and

B. Disclose the number of products or services that must be purchased in order to qualify for any rebate offer. The disclosure shall be made clearly and prominently and in close proximity to the offer.

II.

IT IS FURTHER ORDERED that:

A. Respondent shall commence within ninety (90) days after the service of this order a consumer tearpad coupon program that includes a national distribution of at least seven million, five hundred and eighty-six thousand, two hundred and eight (7,586,208) tearpad coupons at least five inches (5") by two and one-half inches (2½") in size that clearly and prominently offer seventy-five cents (75¢) off the purchase of "any two (2) cans or multi-packs" of Bumble Bee Solid White Albacore Tuna. These tearpad coupons shall be redeemable at the place of purchase, and have an expiration date of at least six (6) months after distribution. Respondent's obligations set forth in this Subpart shall hereafter be referred to as the "Program."

B. Respondent agrees that if the total costs incurred in this Program (including but not limited to the costs of printing, distributing, and redeeming the tearpad coupons) do not exceed two hundred thousand dollars ($200,000) ("Minimum Expenditure") ninety (90) days after the expiration date on the tearpad coupon, respondent shall transfer electronically to the United States Treasury within ten (10) business days a dollar amount equal to the difference between the actual cost of the Program and the Minimum Expenditure.

C. In the event of respondent's failure to implement the Program in accordance with the terms of this order, the entire amount of the Minimum Expenditure, together with interest, as computed pursuant to 28 U.S.C. § 1961 from the date of service of this order to the date of payment, shall immediately become due and payable. Notwithstanding any other provision of this order, respondent agrees that if it fails to meet the payment obligations set forth in this Part, respondent shall pay the costs and attorneys fees incurred by the Federal Trade Commission and its agents in any attempts to collect amounts due pursuant to this order.

D. Respondent further agrees that the facts as alleged in the complaint filed in this action shall be taken as true in any subsequent litigation filed by the Federal Trade Commission to enforce its rights pursuant to this Part.

III.

IT IS FURTHER ORDERED that respondent shall within ninety (90) days after the date of service of this order, send by certified mail a report, in the form of a sworn affidavit executed on behalf of the respondent to the Associate Director, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Washington, D.C. 20580 certifying that it has implemented the Program set forth in Part II. Within ninety (90) days of the expiration date on the Program's tearpad coupon, the respondent shall send by certified mail a report, in the form of a sworn affidavit executed on behalf of the respondent to the Associate Director, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Washington, D.C. 20580 setting forth in detail the manner and form it has complied with Part II of this order, including but not limited to a detailed report that specifies the costs of the Program such as monies expended printing the coupons, distributing the coupons, dispersing coupon processing fees to retailers, and redeeming the coupons.

IV.

IT IS FURTHER ORDERED that respondent shall, for five (5) years after the last date of dissemination of any representation covered by this order, maintain and upon request make available to the Federal Trade Commission for inspection and copying:

A. all advertisements, product labels, and promotional materials containing the representation; and
: B. all tests, reports, studies, surveys, demonstrations, or other evidence in its possession or control that contradict, qualify, or call into question the representation, or the basis relied upon for the representation, including complaints and other communications with consumers or with governmental or consumer protection organizations.

IT IS FURTHER ORDERED that respondent shall deliver a copy of this order to all current and future principals, officers, directors, and managers, and to all current and future employees, agents, and representatives having responsibilities with respect to the subject matter of this order, and shall secure from each such person a signed and dated statement acknowledging receipt of the order. Respondent shall deliver this order to current personnel within thirty (30) days after the date of service of this order, and to future personnel within thirty (30) days after the person assumes such position or responsibilities.

VI.

IT IS FURTHER ORDERED that respondent shall notify the Federal Trade Commission at least thirty (30) days prior to any change in the corporation that may affect compliance obligations arising under this order, including but not limited to a dissolution, assignment, sale, merger, or other action that would result in the emergence of a successor corporation; the creation or dissolution of a subsidiary, parent, or affiliate that engages in any acts or practices subject to this order; the proposed filing of a bankruptcy petition; or a change in the corporate name or address. Provided, however, that, with respect to any proposed change in the corporation about which respondent learns less than thirty (30) days prior to the date such action is to take place, respondent shall notify the Federal Trade Commission as soon as is practicable after obtaining such knowledge. All notices required by this Part shall be sent by certified mail to the Associate Director, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Washington, D.C. 20580.

VII.

IT IS FURTHER ORDERED that respondent shall, within sixty (60) days after the date of service of this order, and at such other times as the Federal Trade Commission may require, file with the Federal Trade Commission a report, in writing, setting forth in detail the manner and form in which it has complied with this order.

VIII.

This order will terminate twenty (20) years from the date of its issuance, or twenty (20) years from the most recent date that the United States or the Federal Trade Commission files a complaint (with or without an accompanying consent decree) in federal court alleging any violation of the order, whichever comes later; provided, however, that the filing of such a complaint will not affect the duration of:

A. Any Part in this order that terminates in less than twenty (20) years;
: B. This order's application to any respondent that is not named as a defendant in such complaint; and
: C. This order if such complaint is filed after the order has terminated pursuant to this Part.

Provided, further, that if such complaint is dismissed or a federal court rules that the respondent did not violate any provision of the order, and the dismissal or ruling is either not appealed or upheld on appeal, then the order will terminate according to this Part as though the complaint had never been filed, except that the order will not terminate between the date such complaint is filed and the later of the deadline for appealing such dismissal or ruling and the date such dismissal or ruling is upheld on appeal.

Signed this day of , 1999

Bumble Bee Seafoods, Inc.

By:

Mark Koob, President

John F. Kroeger
Assistant General Counsel,
International Home Foods, Inc.
Attorney For Respondent

Donald G. D'Amato
Counsel for the
Federal Trade Commission

APPROVED:

Michael Joel Bloom
Director
Northeast Regional Office