Responsive documents - CREW: FTC: Regarding Indoor Tanning Association: 4/15/14 - batch three

8/12/2019 Responsive documents - CREW: FTC: Regarding Indoor Tanning Association: 4/15/14 - batch three

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INDOORT NNINGA SSOCI TION

Promoting spon5ible Sun Cart a d Satn Burn Prtv e nlion.

2025 M STREET NW Sum: 800WASHlNGTON, DC 20036PHONE: 888-377-0477

FAX: 202-367-2142WWW.THE ITA.COM

July 23, 2010Mr. DonaldS. Clark

~ ~ c r e t a r yFederal Trade Commission6oo PennsylvaniaAve. NWWashington, D.C. 20580

Re: In the Matter of Indoor TanningAssociation, a corporation, C-4290Dear Mr. Clark,

In accord with XI of the Decision and Order from the Federal Tradem m i s i o n intne Matter of the Indoor Tanning Association Do cket NumberC4290 ( Order ), I am providing to the Commission a true and accurate repmtdetailing the manner and form by which I, on behalf of the Indoor TanningAssociation, have complied fully with this order.

Pursuant to paragraph IV of the Order, on June 1, 2010, I delivered to allprincipals, officers, directors and other employees with managerial authority ofthe Indoor T(l'Iming. s s o c i a t i o n ~ a copy of the order with a request to .acknowledge riceiptthe ordet. A copy of that correspondence is attached.

'Pursuant to paragraph VII,on June 3, 2010 I sent to all IndoorTanningAssociatiO'ninembers and all other entities that Teceivedthe point of saleadvertising on or after January 1 2008 over 700 businesses), first class mail,postage paid, return receipt requested, a letter on ITA letterhead using the exactwording of attachment A. A copy of that letter is attached and I would be happyto provide the Commission with the recipients and return receipt files at yourrequest.

As detailed in th e paragraphs I II, the Indoor Tanning Association isprohibited from making certain marketing statements or representations inconnectionWith the manufacturing, labeling, advertising, promotion, offering forsale, a l e ~ :or:distribution of indoor tanning services. The Indoor TanningAssociation certifies that it has removed all information and references on itswebsite,relating to' the statements listed in A B, C Din I of t4e order; and in AB in II of the order and otherWise is no longer making those statements orrepresentations..


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Bdetailed in paragraphs III IV the ndoor Tanning Association isrequired to have to have competent and reliable scientific evidence supporting itsmarketing claims related to indoor tanning and not misrepresent the scientificbasis for any of its marketing. The Indoor Tanning Association has and w ll takesubstantial steps to ensure its marketing claims for covered products are bothsubstantiated and that any claims relating to scientific support are appropriatelyestablished by scientific evidence.

B detailed in paragraph V the ndoor Tanning Association is required tomake certain disclosures if it makes claims about the safety or health benefits ofindoor tanning services. The Indoor Tanning certifies that it has complied withthis requirement including the disclaimer as specified in the Order on ourmembership brochure, Facebook page and website.Pursuant to paragraph VI, the ndoor Tanning Association has not

provided to any other person, or entity any means or instrumentalities, thatcontain any representation or omission prohibited by this order directly ort h r o t t g h a n y e e > l p e r a H o f 1 : ; i 7 8 . r t n e r s h i p o r s u b s i E l : i t t r y d i v i s i e f l f m E l e : n a m e m ~ t h e r . device, in connection with the manufacturing, labeling advertising, promotion,offering for sale, sale or distribution of any covered product or service, in oraffecting commerce.

Furthermore, in all conversations, phone conversations, meetings andevents where our members are present, we have discussed this.order supplyingdetailed information regarding how we are complying.Pursuant to paragraph VIII, I have implemented document retentionpolicies related to representations covered by this Order.I hope this satisfied the information required in XI. Please call me if youhave any questions.

Cc:

Mr. Davis SpiegelEnforcement LiaisonFederal Trade Commission


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/ I;i ; x ; ~ :. ~ : : ~ } INDOORTANNING' , . \:: \ ASSOCIATION

Promoting R t s p o n s / ~ l t u Cart d u Burn Preutnlion

IMPORT NT NOTICE BOUT GOVERNMENT CTIONDear ITA Member or Affiliate:

2025 M Stree t, NW Sui t


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From: Overstreet, JohnSent: Tuesday, June 01 2010 12:18 PMTo: Bill Pipp; 'Dan Caskey'; [email protected]; Diane Lucas; Don Hirsch; Ed Jerger;Greg Henson; HANS-JUERGEN KREITZ ; Jim Shepherd; Karen Bentlage; Karl Platzer; KevinApgar; [email protected]; Marty Gallagher; Rick Kueber ; Rick Norvell ; RobQuinn; Susan MillerCc: Joe SchusterSubject: FTC Final Consent DecreeAttachments: FTC final complaint and order 5-26-IO.pdf; board acknowledgment ofreceipt.docJune 1 2010To: ITA Board of Directors and StaffFrom: John OverstreetRE: Federal Trade Commission Complaint and Order

On Wednesday, May 26, 2010 I received official notification of the Decision andOrder from the Federal Trade Commission in the Matter of he Indoor TanningAssociation Docket Number C4290. A copyis attached for your review and files.The order requires me to do two in the next 30 days. They include:

1. Send a letter (seeAttachment A in Consent Decree for the exact language of theletter) first class mail postage prepaid, return receipt requested to our membersas of January 1 2008 and anyone one else after that date who received theadvertising addressed in the complaint making them aware of the FTC sallegations and this settlement. In the letter I am required to request that they nolonger use the Melanoma Hype print ad; the Overdose of Hysteria video; TheCommunications: The Basics guide; and the print ad with the tag line Time toRethink Sun Tanning , all of which were distributed to the membership in a CD-ROM. This will include approximately 700 members. We have star ted thatprocess.2. Deliver a copy of he order to all Officers, Directors and employees of theassociation and secure from each a signed dated statement acknowledging receiptof the order. By this memo and attachment I am delivering the order. For yourconvenience, I have also attached a receipt. Please enter your name, sign, dateand return to me at your earliest convenience. Within 60 days, I have to submit areport to the FTC detailing how I complied with the order so your cooperation isappreciated.

If you have any questions, please call me.

Thanks, John


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TO: John Overstreet, Executive Director, Indoor TanningAssociation

n accord with the requirements ofthe Federal Trade Commission s Com_plaintand Order in the Matter of the ndoor TanningAssociation, DocketNo C4290, Ihereby acknow ledge receipt of the order.

Signature

NameDate ______________________


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UNITED STATES OF AMERICAFEDERAL TRADE COMMISSIONWASHINGTON, D C . 20580

Division of Advertising PrncticesJanet M Evnns202.326.2125

Mr. Daniel F. McinnisAkin Gump Strauss Hauer Feld, LLP1333 New Hampshire Avenue, N.W.Washington, DC 20036

June 22, 2009

Re: Indoor Tanning Association, Inc.File No. 082-3159Dear Dan,

The staffof he Federal Trade Commission conducted a non-public investigation of heIndoor Tanning Association, Inc. ( ITA ) to determine whether it engaged in unfair or deceptiveacts or practices in violation of Sections 5 and 12 of the Federal Trade Commission Act, 15U.S.C. 45 and 52. We concluded that ITA violated Section 5 and 12, in connection with theadvertising and marketing of indoor tanning. Consistent with this determination, the Bureau ofConsumer Protection has approved a proposed complaint in this matter, and authorized us tooffer your client the opportunity to negotiate a settlement of the allegations. The proposedcomplaint and order approved by the Bureau are attached.

We are operating under time constraints, and ask your cooperation in attending to tlusmatter promptly. Please advise us no later than close of business on July 2, 2009 whetl1er ITAdesires to negotiate a settlement of this matter. n addition, please call and schedule an initialnegotiating meeting, to occur no later than July 9, 2009. At this meeting, please be prepared todiscuss all aspects of the proposed order.


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COMMISSIONERS:

UNITED STATES OF AMERICAFEDERAL TRADE COMMISSIONJon Leibowitz, ChairmanPamela Jones HarbourWilliam E. KovacicJ. Thomas Rosch

In the Matter of ))INDOOR TANNING ASSOCIATION, )

a corporation. )DOCKET NO.

COMPLAINTThe Federal Trade Commission, having reason to believe that Indoor TanningAssociation, a corporation ( respondent ), has violated the Federal Trade Commission Act, and

it appearing to the Commission that this proceeding is in the public interest, alleges:1 Respondent Indoor Tanning Association ( ITA ) is a Massachusetts corporation with itsprincipal place ofbusiness at 2025 M St., N.W., Washington, D.C. 20036. ITA is registered as anonprofit entity under Section 50l(c)(6) of he Internal Revenue Code. Its members includeindoor tanning manufacturers, distributors, facility owners, and representatives of othersupporting industries. ITA s purpose is to advance the business growth and image of the indoortanning industry, and the welfare of its membership.2. Respondent has advertised and promoted to the public the use of ultraviolet lamps andsunlamp products, as defined in 21 C.F.R 1040.20, and commercial indoor tanning facilitieswhere consumers may use ultraviolet lamps or sunlamp products. Ultraviolet lamps andsunlamp products are devices within the meaning of Sections 12 and 15 of the Federal TradeCommission Act.3. The acts and practices ofrespondent, as alleged herein, have been in or affectingcommerce, as commerce is defined in Section 4 of the Federal Trade Conunission Act.4. As part ofa coordinated campaign to promote ultraviolet lamps and sunlamp productsand indoor tanning, respondent created, prepared, disseminated, or caused to be disseminatedadvertisements, including the attached Exhibits A through G These advertisements contain thefollowing representations or statements, among others:

a. TANNING CAUSES MELANOMAHYP


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b

Recent research indicates that the benefits of moderate exposure to swui ghtoutweigh the hypothetical risks. Surprisingly, there is no compelijng scientificevidence that tanning causes melanoma. Scientists have proven, however, thatexposure to all forms of ultraviolet light- both indoors and out - stimulates thenatural production of vitamin D. And research has proven that vitaminD protectsagainst heart disease and many types ofcancer, in additio n to other importanthealth benefits.

It's time to rethink sunbathingFind out more at www SunlightScamcommessage brought to y u by the Indoor Tanning ssociation

- Exhibit A, newspaper advertisement and point-of-sale poster artprovided to A members

There are a lot ofmisconceptions about sunlight. After hearing relentlesscampaigns telling us to lather on the sunscreen, many Americans have been led tobelieve that ultra violet [sic] (UV) ligh whether it comes from the sun or from atanning salon - is something to be feared, rather than cherished.The reality is that UV light provides us with countless health benefits- bothphysiological and psychological. And the rewards of soaking up the sun evenoutweigh the risks of overexposure. Though there are various ways of getting therecommended amount, such as mowing the lawn or lying by the pool, safe,moderate tanning is the best way to maximize these benefits while minimizing anyrisks.

lanoma MisinformationGetting a regular amount of sunlight is healthy, whether it's outdoors or in a sunbed. Moderate exposure to UV light benefits people with vitamin D deficiencyand makes people feel good. However, a great deal of rnisinfonnation has beenspread about the link between Melanoma and ny amount [sic] UV exposure.The truth may surprise you:

Sunburns, not sun tans are linked to melanoma Melanoma is most common among those who work indoors, notoutside Melanoma appears most commonly on body parts not regularly

exposed to sunSafe, moderate exposure does not increase risk of melanoma skin cancer. Andtanning indoors is even safer because, unlike exposure to the sun, the environment

2


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is controlled. In fact the anti-cancer benefits ofUV exposure highlighted be [sic]recent studies far outweigh the risks associated with over-exposure.-Exhibit B website http://www.trusttanning.com

c Get the Facts About TanningSCAM Getting a tan is dangerousTRUTH There is nothing dangerous about getting a tan. In fact your bodyneeds ultraviolet light to live. And now new research is unlocking the secrets ofvitamin D which is naturally produced by skin when it is exposed to sunlight orindoor tanning lights. Earlier this year the London elegraph reported:

Last week a report in the prestigious US journal Proceedings of theNational Academy of Sciences revealed that people with higher levels [ofvitamin D] were more likely to survive colon breast and lung cancerThe Proceedings of the National Academy of Sciences study determined that therisks associated with not getting enough sun far outweighed any hypotheticaldamage that might occur.While a healthy tan poses no significant risks of damaging your skin burning yourskin can be dangerous. For that reason indoor tanning - where the amount ofUVlight you receive is monitored -is considered by many to be a safer alternative totanning outdoors.SCAM Every ray ofUV light from a tanning bed increases your risk ofcontracting melanoma skin cancerTRUTHA recent study in the prestigious Proceedings of he National Academy of Sciencesdete1mined that the risks of not getting enough UV light far outweighed thehypothetically minute risk of skin cancer. That s because getting a healthy tannaturally produces vitamin D which has been linked to significantly decreasingyour risk of contracting internal cancers like lung kidney or liver cancer.While getting too much sun has been linked to some forms of cancer indoortanning is a govermnent-approved controlled environment designed to give you atan without ever burning- which is the likely culprit in contracting cancer fromsun exposure.SCAM Indoor tanning is more dangerous than tanning in the sunTRUTH Just the opposite is true. Unlike tanning outdoors indoor tanning isdesigned to match your skin type and desired tan in a well-regulated controlled


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environment. Consequently the vast bulk of scientific research indicates thatindoor tanning is a safer alternative to tanning outdoors.

-Exhibit C website vvww.sunlightscam.com.

d. The fear ofgetting a tan has gone too far. Dermatologists vvith the sunscreen andcosmetic industries are trying to scare us away from the sun. But tanning producesvitamin D and research shows vitamin D may fight heart disease breast cancerstroke and osteoporosis. So go get a tan your body will thank you.

e

[on screen: Vitamin D Fights Heart Disease Breast Cancer Stroke Osteoporosis]Bought to you by The Indoor Tanning s s ~ c i a t i o n

-Exhibit D 1 Transcript television and website advertisement andExhibit E DVD containing video of same[on screen: www.SunLightScam.com]The fear ofgetting a tan has gone too far. Dermatologists with the stmscreen andcosmetic industries are trying to scare us away from the stm. But tanning producesvitamin D and research shows vitamin D may fight heart disease breast cancerstroke and osteoporosis. So go get a tan your body will thank you.[on screen: www.SunLightScam.com][on screen: Vitamin D Fights Heart Disease Breast Cancer Stroke Osteoporosis}Bought to you by The Indoor Tanning Association.

-Exhibit D2 Transcript television and website advertisement andExhibit E DVD containing video of same

By practicing what you find in this book you will more effectively communicateyour message build your image and motivate desired behavior.ARGUMENT 1 - VITAMIN D IS GOOD (VITAMIN D IS THE SUNSHINEVITAMIN ): t is impossible to get the requisite amotmt of vitamin D in cities north of

37 degrees for as many as 6 months out of the year. Vitamin D isn't like other vitamins that you can easily ingest as part of

your diet. t is best absorbed through the skin from exposure to UV light.New research indicates that supplement-based vitamin D as opposed to

4


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vitamin D naturally produced through exposure to UV light, may actuallyham1 the body s ability to fight disease.ARGUMENT TANNING NMODERATION IS BENEFICIAL

- Indoor tanning in moderation is safer than exposure to the sun, because theenvironment is controlled.-Unlike the sun, tanning is well regulated and approved by the government. Whenused moderately and responsibly, tanning sessions are designed to preventburning.

-Exhibit F, ITA Communications: the basics guide provided toITA members

f Enjoy the sun on doctor s ordersSolar rays can help protect against some cancers and heart disease say scientists- The Guardian, January 8, 2008As Vitamins Go, D, You Are My SunshineJust 2 minutes of un exposure without sunscreen enables the skin to produce20 000 IV o vitamin D

-The Washington Post, September 18, 2007Sunshine prevents more deaths than it causes;Sunshine has a protective effect overall because it helps to create vitamin D

-New Scientist, January 12, 2008

Time to rethink sun tanning?For more information visit www.Trust Tanning. comDermatologists and the sunscreen industry have spent millions on a deceptivecampaign to scare Americans away from the sun. Now the tide of research isturning the other direction. The positive effects of getting vitamin D from sunlightare clear. So soak up a little sunlight- indoors or out- a couple of times eachweek, and get your recommended dose of the sunshine vitamin.Paid for by the Indoor Tanning Association

-Exhibit G, newspaper advertisement and point-of-sale poster artprovided to ITA members5. Through the means described in Paragraph 4, respondent has represented, expressly or byimplication, that:

5


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A. Tanning, including indoor tanning, does not increase the risk ofskin cancer;B Tanning, including indoor tanning, poses no danger;C Indoor tanning is approved by the government; andD Indoor tanning is safer than tanning outdoors because, in indoor tanning facilities,the amount of ultraviolet light is monitored and controlled.6. In truth and in fact:

A. Tanning, including indoor tanning, can increase the risk ofskin cancer, includingbasal cell, squamous cell, and melanoma skin cancers;B Tanning, including indoor tanning, poses danger;C Indoor tanning is not approved by the government; andD. Indoor tanning is not safer than tanning outdoors because the amount ofultraviolet light received when tanning indoors is not monitored and notcontrolled sufficiently to prevent the health risks associated with ultravioletexposure.Therefore, the representations set forth in paragraph 5 were, and are, false and misleading.7. Through the means described in Paragraph 4, respondent has represented, expressly or yimplication, that it relied on a reasonable basis that substantiated the representations set forth inParagraph 5, at the time the representations were made.8 In truth and in fact, respondent did not possess and rely upon a reasonable basis thatsubstantiated the representations set forth in Paragraph 5, at the time the representations weremade. Therefore, the representation set forth in paragraph 7 was, and is, false and misleading.9 Through the means described in Paragraph 4, respondent bas represented, expressly or byimplication, that:

A Research shows that vitamin D supplements may harm the body s ability to fightdisease;B A recent study in the prestigious Proceedings of the National Academy ofSciences determined that the risks ofnot getting enough ultraviolet light faroutweigh the hypothetical risk of skin cancer, that getting a healthy tan producesvitamin D, and that increased Vitamin D has been linked to significantlydecreasing your risk ofcontracting internal cancers, such as lung, kidney, or livercancer; andC Research has proven that vitamin D protects against heart disease.10 In truth and in fact:

A Research has not shown that vitamin D supplements may harm the body s abilityto fight disease;B The study in the Proceedings of the National Academy ofSciences referenced by


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respondent did not determine that the risks of not getting enough ultraviolet lightfar outweigh the hypothetical risk of skin cancer, that getting a healthy tanproduces vitamin D or that increased vitamin D has been linked to significantlydecreasing the risk of contracting internal cancers, such as lung, kidney, or livercancer; and

C. Research has not proven that vitamin D protects against heart disease.Therefore, the representations set forth in paragraph 9 were, and are, false and misleading.11. Respondent has represented that tanning has health benefits and causes the skin togenerate Vitamin D. Respondent has failed to disclose that consumers can increase th irVitaminD levels through ultraviolet exposure levels lower than the amount needed to get a tan,and that the Food and Drug Administration requires that indoor tanning devices bear labelsdisclosing that ultraviolet radiation can cause skin cancer and eye injury. These facts would bematerial to consumers. The failure to disclose these facts, in light of he representation made,was, and is, a deceptive practice.12. Through the means described in Paragraph 4, respondent has provided to others themeans and instrumentalities to engage in deceptive acts or practices.13. The acts and practices of respondent as alleged in this complaint constitute unfair ordeceptive acts or practices, and the making of false advertisements, in or affecting commerce inviolation of Section 5 a) and 2 of he Federal Trade Commission Act.

THEREFORE the Federal Trade Commission this2009, has issued this complaint against respondent.

By the Commission.

SEAL:

DonaldS. ClarkSecretary

day of


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Recent research Indicates that the benefits of moderate exposure to sunlight outweighthe hypothetical risks. Surprisingly there Is no compelling scientific evidence thattanning causes melanoma. Scientists have proven however that exposure to allforms of ultraviolet l ight both Indoors and out stimulates the natural production ofvitamin D. nd research has proven that vitamin D protects against heart disease andmany types of cancer In addition to other important health benefits.

It s time to rethink sun bathingFind out more t

www.SunlightScam.comA m a i 1 g ~ hTTIUghr yuu by lnd411r Tanning AsJuciation

; : :

xhibit A


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Zi .. 'it ' . r : ' ;Ufe on our planet needs sunlight to survive. And humansare no exception. Unlike plants and animals that dailystruggle to stay in the light, we actively work to voidthe sun .There are a lot of misconceptions about sunlight. Afterhearing relentless campaigns telling us to lather on thesunscreen, many Americans have been led to believethat ultra violet (UV) light-whether It comes from thesun or from a tanning salon-is something to be feared,rather than cherished. Until now, hope for a balancedmessage In the public debate on this Issue seemed to belost.The reality Is that UV light provides us with countlesshealth benefits-both physiological and psychological.

Page I of I

,., . \ ' } ...

And the rewards of soaking up the sun even outweigh the risks of overexposure. Though there are variousmethods of getting the recommend amount, such as mowing the lawn or lying by the pool, safe, moderatetanning is the best way to maximize these benefits while minimizing any risks.TrustTannlng.com is devoted to answering the most frequently asked questions about tanning anddebunking some of. he most ~ r v a s l v e m y t ~

f) W08 TrllstTanning.cum

Exhibit B p. l

http://www.trusttanning.com/ 1' 120DOQ


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1 - .. 6 - V I J I

~ f - > 1 ::: -1 a : ~ I t .r m ;:ll.. ; - l ~ . ..tJ = - ; .( ') .; orm ~ o n :i :_:; i \ l J . t;.U t. 1 .

These data, together with those for Internal cancersand the beneficial effects of an optimal vitamin Dstatus, Indicate that Increased sun exposure maylead to Improved cancer prognosis and, possibly,give more positive than adverse health effects. nProceedings from the National Academies o Science

2008

Getting a regular amount of sunlight is healthy, wh etherit's outdoors or in a sun bed. Moderate exposure to UVlight benefits people with vitamin D deOciency and makespeople feel good. However, a great deaf of misinformationhas been spread about the link between Melanoma andany amount UV exposure.The trutt,\ may surprise you:

Sunburns, not sun tans are linked to melanoma Melanoma Is most common among th ose who workIndoors, not outside

Melanoma appears most commonly on body parts not regularly exposed to sun

Page I of I

.

Safe, moderate exposure does not increase risk of melanoma skin cancer. And tanning Indoors is even safer,because unlike exposure to the sun, the environment Is controlled. In fact, the anti-cancer benefits of UVexposure highlighted be recent studies far outweigh the risks associated with over-exposure.

Exhibit B p. 2

htlp://www. trusnanning.com/skinCancerMis information.htm l l JI:200Q


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SCAM: Uetting a tan is dangerous - SunLightScam.com Page of2

F.:QJsiJie Sunscare Scams About Tanning .BJIDYb.f CK About UsGet the acts about TanningThe Sun scam Industry has spent millions of dollars scaring Americans out of the sun in an effort to sellmore sunscreen. But before you believe the sunscreen companies, get the facts about UV light andtanning.

Getting a tan is dangerous Tanning has caused an epidemic of skin cancer Every ray of UV li ht from a tanning bed increases your risk of contracting melanoma skin cancer Tanning P . . ~ d ~ 5_ . i n 1 e ~ s t ~ o n g ~ r _ h the_1;m1 There is no such thing as a responsible tan You can get enough Vitan1inD throu h supplements or drinking milk Tanning doesn't ~ I Q ~ e c t you from getting a bum on vaG_atiQn Indoor tanning is more dangerous than tanning in the sun

Getting a tan is dangerous

fRJJf i:There is nothing dangerous about getting a tan. [n fact, your body needs ultraviolet light to live. Andnow, new research is Lmlocking the secrets of vitamin D which is naturally produced by skin when it isexposed to sunlight or indoor tanning lights. Earlier this year the London elegraph reported:

Last week, a report in the prestigious US journal Proceedings of the National Academy ofSciences revealed that people with higher levels [of vitamin D] were more likely to survivecolon, breast and lung cancer. This follows last year's University ofSan Diego review of 40years of research, which revealed that a daily dose could halve the risk of breast and bowelcancer.Other claims are that it reduces the risk of heart disease (a study of I0,000 women inCalifornia found that those who took supplements had a 3 per cent lower risk of dying

http://www sunlightscam.com/scam l.htmlExhibit C p.1/13/2009


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~ L A M Uettmg a tan ts dangerous - SunLightScam.com Page 2 of2

from it), diabetes in a Finnish study of 2 ,000 children, it cut their chance of developingType A diabetes by 80 per cent), even colds and flu New Yorkers who took vitamin D hadflu 70 per cent less often).The Proceedings of the National Academy ofSciences study determined that the risks associated withnot getting enough sun far outweighed any hypothetical damage that might occur.While a healthy tan poses no significant risks of damaging your skin, burning your skin can bedangerous. For that reason, indoor tanning-where the amount ofUV light you receive is monitored- isconsidered by many to be a safer alternative to tanning outdoors. 2008 The Indoor Tanning Association

Exhjbit C p. 2

http://www.sunlightscam.com/scaml.html 1/13/2009


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:)CAM: every ray of UV light from a tanning bed increases your risk of contracting mela... Page I of2

f o . r ~ i ~ k Suns(;are Scams About TarU1ing S J9 l ib.ac.k About Us Q ~ U g Jl JJ J'L ~ ~ n m ~ T ~ . n n j p g h c ; a J J ~ ~ ~ l _ ~ n ~ P i . d ~ m i of skin cancer Every ray of UV light from a tanning bed increases your risk of contracting melanoma skincancer TgniJiPg ~ l ~ L i . . t u n ~ ~ s i m n ~ L t ~ n . J b ~ s.t n There is no such thing as a responsible tan You can grt_enough Vitamin D through supplements or c. .ri.nlcing m lk T ~ n . n i n g ~ ~ H l t P . m t ~ c YPM f L o ~ l J _ g ~ t l i Q g g_burn ~ ~ < ; a t i Q . n Indoor tanning is more dangerous than tanning in the sun

Every ray of UV light from a tanning bed increases your risk of contracting melanoma skin cancer

ftUlftlSo careful sunbathing, with measured exposure to the sun, may actua lly reduce rather than increase therisk of melanoma, reduce the overall risk of death from skin cancer, and improve survival for those whodevelop melanoma.- Dr. Oliver Gillie in the British Journal of DennatologyThe C word is scary. Nobody knows that more than the billion-dollar sunscreen industry, which hassystematically attempted to link sun exposure to cancer in an effort to deceptively scare people intobuying their products. But despite their best efforts to link tanning to melanoma, no clear link exists. Infact, more than 18 separate peer-reviewed scientific studies jndicate that there is no link between tanningindoors and melanoma.That should put the debate about tanning and cancer to rest, but the sunscreen industry knows that thefear of cancer is the driving force selling their product. As a result, they have taken to quietly fundingfront groups with deceptive names like the Skin Cancer Fow1dation and the Sun Safety Alliance to keepthe myth of tanning and cancer planted in the minds of the media and, ultimately, their consumers.Ironically, e m ~ n t i . n g _ r e s e a . . r f (may require login) indicates that sunscreen does nothing to protectagainst contracting melanoma The industry is effectively selling a problem in search of a solution that

http://www.sunlightscam.com/scam3.htmlExhibit C, p. 3

111 3/2009


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>CALVI every ray ot V ght trom a tanning bed increases your risk of contracting mela... Page 2 of2

they don t even have.In the meantime the law of unintended consequences reveals that the s unscreen industry s message ofUV abstinence may have backfired when it comes to preventing cancer.A recent study in the pres tigious Proceedings of the National Academy of Sciences determined that therisks of not getting enough UV light far outweighed the hypothetically minute risk of skin cancer. That sbecause getting a healthy tan naturally produces vitamin D which has been linked to significantlydecreasing your risk of contracting internal cancers like ltmg kidney or liver cancer.While getting too much sun has been linked to some forms of cancer indoor tanning is a government-approved controlled enviromnent designed to give you a tan without ever burning-w hich is the likelyculprit in contracting cancer from sun exposure.The bottom line s clear the risks of not getting enough vitamin D outweighs the hypothetical risks ofUV light exposure. 2008 The Indoor Tanning Association

Exhibit C, p. 4http://www sunlightscam.com/scam3.html 1/ 3/2009


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SCAM: indoor tanning is more dangerous than tanning in the sun- SunLightScam.com Page 1 of 1

s i d ~ Sunsc are Scams About n nning B l . o w About U Q _ ~ t t n g ~ 1 J a d ~ n g g : r m t ~ T nn io g .c.cuJ.sc:.d ; ; m P . J 4 m i s ; q f . s . k i L ~ 1 n ~ c ; : r Every rav of V light from a tmming bed increases your i ~ o f contractinl: melanoma skin cancer Tann illg__beds are l S_times stronger than the sun T h e r ~ ng such thing S ~ p o n ~ b l e tan_ You can_gstl_enough Vitamin D thro ugh supplements or drinking milk I a n n j n g _ c J ~ p r o t you from getting a bum on vacation ndoor t nning is more dangerous than tanning in the sun

s i\lf .ltIndoor tanning is more dangerous than tanning in the sun

fRtJftlJust the opposite is tme. Unlike tanning outdoors indoor tanning is designed to match your skin typeand desired tan in a well-regulated, controlled environment. Consequently, the vast bulk of scientificresearch indicates that indoor tanning is a safer alternative to tanning outdoors. 2008 The Indoor Tanning Association

Exhibit C p. 5http://www.sun lightscam.com/scam8.html 1113/2009


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The fear ofgetting a tan has gone too far. Dermatologists with the sunscreen andcosmetic industries are trying to scare us away from the sun. But tanning producesvitamin D, and research shows vitamin D may fight heart disease, breast cancer, stroke,and osteoporosis. So go get a tan, your body \vill thank you.on screen: Vitamin D Fights Heart Disease Breast Cancer Stroke Osteoporosis]

Bought to you by The Indoor Tanning Association.- Exhibit Dl Transcript, television and website advertisement

[on screen: www.SunLightScam.com]The fear of getting a tan has gone too far. Dermatologists with the sunscreen andcosmetic industries are trying to scare us away from the sun. But tanning producesvitamin D, and research shows vitamin D may fight heart disease, breast cancer, stroke,and osteoporosis. So o get a tan, your body will thank you.[on screen: www.SunLightScam.com][on screen: Vitamin D Fights Heart Disease Breast Cancer Stroke Osteoporosis]Bought to you by The Indoor Tanning Association.

-Exhibit D2, Transcript, television and website advertisement


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ibit


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Exhibit F p. l


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AN EFFECTIVE COMMUNICATIONS STRATEGY IS ESSENTIALFOR ANY BUSINESS OR NON PROFlT ADVOCACY GROUP. Inf . .. : a world where there is an infinite amount of information com-peting for the limited attention of consumers, it Is increasinglyimportant to ~ p l o y a messaging campaign that can cutthrough the clutter and reach your intended target.It is frequently assumed th t to do this you need a multi-milliondollar advertising budget. However with solid research newor underreported facts, a creative or controversial advertisingcampaign, and a coordinated media strategy, there are inexpensive ways to ensure th t the public hears and Is influencedby your message.

By practicing what you find in this book, you will be able tomore effectively communicate your message, build your image,and motivate desired behavior.i02

Exhibit F p. 2


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1.. . . .

ARGUMENTVITAMIN D IS GOOD (VITAMIN 0 IS THE "SUNSHINE VITAMIN ): According to a Harvard University study published in the New EnglandJournal of edicine 60% of Americans are vitamif D deficient. Vitamin D deficiency is associated with an increased risk of colon,prostate, and breast cancer and Is shown to ward off heart disease,MS, and other chronic health problems. Recent research shows that the benefits associated with vitamin 0

o u t w any potential risks associated with exposure to UV light. Doctors estimate that there are over one billion people worldwide .risk of vitamin 0 deficiency, with 30-50% of children and adults In the('United States at high risk for this dangerous condition. Vitamin 0 Is also linked to many common wintertime complaints such

as fatigue, depression, and aches and pains. It Is impossible to get the requisite amount of vitamin D In cities north

of 37 degrees for as many as 6 months out of the year. That includescities like Richmond, VA St. louis, MO, Sacramento, CA and thosefurther north.

Vitamin D isn't like other vitamins that you can easily ingest as partof your diet. It is best absorbed through the skin from exposure to UVlight. New research indicates that supplement-based vitamin D asopposed to vitamin D naturally produced through exposure to UV light,may actually harm the body's ability to fight disease.

African Americans are particularly susceptible to vitamin 0 deficiencybecause increased levels of skin pigment inhibit the body's naturalability to produce vitamin D.

Exhibit F p. 3


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ARGUMENTTANNING IN MODERATION IS BENEFICIAL Tanning in moderation makes people look aod feel better. Moderate exposure to UV light benefits people concerned aboutvitamin D deficiency and has proven to boost .immunity to certaindiseases. Indoor tanning in moderation is safer than exposure to the sunbecause the environment s controlled. Unlike the sun tanning indoors is well regulated and approved bythe government. When used moderately and responsibly tanning se Ysions are designed to prevent burning.

Exhibit F p. 4


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Enjoy the sun on doctor s ordersSolar rays can help protect against some cancers andheart disease; s y scientistsThe Guardian, January 8 2008

AsVitamins Go, D, YouAreMy ~ s h i n f ijust 20 minutes of un exposure without sunscreen

_ enables the skin to produce 20 000 IU ofvitamin D _' The Washington Post. September 18.2007;unshin; ; ; ~ e n t s mor; ~ ~ t h ; f h ~ n it causesSunshine has a protective effect overall becauseit helps to create vitaminN ew Scientist. January 12, 2008

c

'

The so-called u n s h i n e vitamin is poised tobecome the nutrient of he decade .. . .The NewYorkTiines, FeblWll}r J9, 2008- .

- . _ , . . . . ;

Studies shed light on 'sunshine vitamin' Americans typically get more than 90 percent o heir vitamin D from

the source that nature intended--the sun ..-The Oakland Tribune, January 22, 2008

Time to rethink sun tanning?For.more information visit www.TrustTanning.com

Dermatologists and the sunscreen industry have spent millions on a deceptive campaign to scare Americans away from the sun. Now the tide of research is turning theother direction. The positive effects ofgetting vitamin D from sunlight are clear. Sosoak up a little sunlight-indoors or our-a couple of times each week, and get yourrecommended dose of the sunshine vitamin.

Exhibit GP:Ucllor by chc Indoor Tanning s s o c i ~ r i o n


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UNITED STATES OF Al\ffiRICAFEDER L TR DE COMMISSION

In the Matter of )INDOOR T NNING ASSOCIATION, )

a corporation. )File No. 082-3159AGREEMENT CONTAININGCONSENT ORDER

The Federal Trade Commission has conducted an investigation of certain acts andpractices of Indoor Tanning Association ( proposed respondent ). Proposed respondent, havingbeen represented by counsel, is willing to enter into an agreement containing a consent orderresolving the allegations contained in the attached draft complaint. Therefore,

IT IS HEREBY GREED by and between Indoor Tanning Association and counsel forthe Federal Trade Commission that:1 Proposed respondent Indoor Tanning Association is a Massachusetts corporation with itsprincipal office or place of business at 2025 M Street, N.W., Washington, D.C. 20036.2. Proposed respondent admits all the u r i s d i c t i o n ~ facts set forth in the draft complaint.

l : }

3. Proposed respondent waives:A. Any further procedural steps;B The requirement that the Commission 's decision contain a statement offmdings

of fact and conclusions of law; andC. 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 he proceeding unless anduntil it is accepted by the Conunission. If his agreement is accepted by the Conunission, it,together with the draft complaint, will be placed on the public record for a period of thirty (30)days and information about it publicly released. The Commission thereafter may eitherwithdraw its acceptance of his agreement and so notify proposed respondent, in which event itwill tal


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5. This agreement is for settlement purposes only and does not constitute an admission byproposed respondent that the law has been violated as alleged in the draft complaint, or that thefacts 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 suchacceptance is not subsequently withdrawn by the Commission pursuant to the provisions ofSection 2.34 ofthe Commission's Rules, the Commission may, without further notice toproposed respondent, I) issue its complaint corresponding in form and substance with theattached draft complaint and its decision containing the following order in disposition of theproceeding, and (2) make information about it public. When so entered, the order shall have thesame force and effect and may be altered, modified, or set aside in the same manner and withinthe same time provided by statute for other orders. The order shall become fmal upon service.Delivery of the complaint and the decision and order to proposed respondent's address as statedin this agreement by any means specified in Section 4.4(a) of the Commission's Rules shallconstitute service. Proposed respondent waives any right it may have to any other manner ofservice. The complaint may be used in construing the terms of the order, and no agreement,understanding, representation, or interpretation not contained in the order or the agreement maybe used to vary or contradict the terms of the order.7. Proposed respondent has read the draft complaint and consent order. It understands thatit may be liable for civil penalties in the amount provided by law and other appropriate relief foreach violation of the order after it becomes final.

ORDERDEFINITIONs .

For the purposes of his order, the following definitions shall apply:1. Unless otherwise specified, respondent shall mean the Indoor TatmingAssociation, its successors and assigns and their officers, and each ofthe abovesagents, representatives, and employees.2. Competent and reliable scientific evidence shall mean tests, analyses, research,

studies, or other evidence based on the expertise ofprofessionals in the relevantarea, that has been conducted and evaluated in an objective manner by personsqualified to do so, using procedures generally accepted in the profession to yieldaccurate and reliable results.3. Covered product or service shall mean any ultraviolet lamp or sunlan1p product,as defined in 21 C.F.R. 1040.20; and any commercial facility where conswnersmay use ultraviolet lamps or sw1lamp products.4. Equally disclose(s) shall mean that the disclosure is presented through the same

Page 2 of 8


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means that is, aural, visual, or both) and manner, and with the same prominencefor example, volume, font size and contrast against background, and duration) asthe triggering representation, and inunediately adjacent to that representation (in

tem1s ofboth time and location). Nothing contrary to, inconsistent with, or inmitigation of he disclosure shall be used in any advertisement, promotionalmaterial, instructional manual, package, or label.

5. Commerce shall mean as defined in Section 4 of he Federal Trade CommissionAct, 15 U.S.C. 44.

I

IT IS HEREBY ORDERED that respondent, directly or through any corporation,partnership, subsidiary, division, trade name, or other device, in connection with themanufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of anycovered product or service, in or affecting commerce, shall not represent, in any manner,expressly or by implication, including through the use ofa product name, endorsement,depiction, or illustration, that:

A. Tanning, including indoor tanning, does not increase the risk of skin cancer;B. Tanning, including indoor tanning, poses no danger;C. Indoor tanning is approve9 by the govenunent; andD. Indoor tanning is safer than tanning outdoors because in indoor tanning facilities,

the amount of ultraviolet light is monitored and controlled..

IIIT IS FURTHERORDERED that respondent, directly or through any corporation,

partnership, subsidiary, division, trade name, or other device, in connection with themanufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution ofanycovered product or service, in or affecting conunerce, shall not misrepresent, in any manner,expressly or by implication, including through the use of a product name, endorsement,depiction, or illustration, that:

A. Research shows that vitamin D supplements may harm the body's ability to fightdisease;

B. A study in the Proceedings of the National Academy ofSciences detem1ined thatsun exposure does not cause skin cancer or melanoma; that getting a tan ishealthy; that the risks of not getting enough UV light far outweigh the risk of skincancer; and that Vitamin D has been linked to significantly decreasing the risk ofcontracting lung, kidney, or liver cancer; and

C. Research has proven that vitamin D protects against heart disease.

Page 3 of 8


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IIIIT IS FURTHER ORDERED that respondent directly or through any corporationpartnership subsidiary division trade name or other device in connection with the

manufacturing labeling advertising promotion offering for sale sale or distribution of anycovered product or service in or affecting commerce shall not make any representationexpressly or by implication including through the use ofa product name endorsementdepiction or illustration about the safety efficacy performance or health-related risks orbenefits of any covered product or service or about the sources performance efficacy orhealth-related risks or benefits ofvitamin D unless the representation is true non-misleadingand at the time it is made respondent possesses and relies upon competent and reliable scientificevidence that substantiates the representation.

IV

IT IS FURTHER ORDERED that respondent directly or through any corporationpartnership subsidiary division trade name or other device in connection with themanufacturing labeling advertising promotion offering for sale sale or distribution of anycovered product or service in or affecting commerce shall not misrepresent in any mannerexpressly or by implication including through the use ofa product name endorsementdepiction or illustration the existence contents validity results conclusions or interpretationsof any test study survey or research.

v

IT IS FURTHER ORDERED that respondent directly or through any corporationpartnership subsidiary division trade name or other device in connection with themanufacturing labeling advertising promotion offering for sale sale or distribution of anycovered product or service in or affecting commerce shall not mal


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NOTICE You do not need to become tan for your skin to make vitamin D. Read themandatory Food and Drug Administration warning found on every indoor tanning devicefor information about the risk of serious eye injury and skin cancer.

VI.IT IS FURTHER ORDERED that respondent, directly or through any corporation,partnership, subsidiary, division, trade name, or other device, in connection with themanufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of anycovered product or service, in or atiecting conunerce, shall not provide to any other person orentity any means or instrumentalities that contain any representation or omission prohibited bythis order. For the purposes of this Part, means or instrumentalities shall mean anyinformation, including but not necessarily limited to any advertising, labeling, conununicationsguides, or other promotional material.

Vll.IT IS FURTHER ORDERED that Indoor Tanning Association and its successors andassigns, shall send s soon as practicable, but in no event later than thirty (30) days after entry ofthis Order, by first-class mail, postage prepaid and return receipt requested, an exact copy of thenotice attached hereto as Attachment A, showing the date of mailing, to all ITA members and allother entities to which ITA provided point-of-sale advertising on or after January 1 2008. Thenotice required by this paragraph shall not include any other document or enclosures and may besent to the principal place of business of each entity.

VIII.IT IS FURTHER ORDERED that for a period offive (5) years after the last date ofdissemination of any representation covered by this order, respondent Indoor TanningAssociation and its successors and assigns shall maintain and upon request mal(e available to theFederal Trade Commission for inspection and copying:A. All advertisements and promotional matetials containing the representation;B. All materials that were relied upon in disseminating the representation; andC. All tests, reports, studies, demonstrations, or other evidence in its possession orcontrol that contradict, qualify, or call into question such representation, or thebasis relied upon for the representation, including complaints and othercommunications with consumers or with governmental or consumer protectionorganizations.

Page 5 of 8


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IXIT IS FURTHER ORDERED that respondent Indoor Tanning Association and itssuccessors and assigns shall deliver a copy of this order to all current and future principals,officers, directors, and other employees with managerial authority having responsibilities with

respect to the subject matter of his order, and shall secure from each such person a signed anddated statement acknowledging receipt of the order. Respondent shall deliver this order tocurrent persmmel within thirty 30) days after the date of service of this order, and to futurepersonnel within thirty 30) days after the person assumes such position or responsibilities.

X.IT IS FURTHER ORDERED that respondent Indoor Tanning Association and its

successors and assigns shall notify the Commission at least thirty 30) days prior to any changein the corporation that may affect compliance obligations arising under this order, including butnot limited to a dissolution, assignment, sale, merger, or other action that would result in theemergence of a successor corporation; the creation or dissolution of a subsidiary, parent, oraffiliate that engages n any acts or practices subject to this order; the proposed filing of abankruptcy petition; or a change in the corporate name or address. Provided, however, that, withrespect to any proposed change in the corporation about which respondent learns less than thirty30) days prior to the date such action is to take place, respondent shall notify the Commission assoon as is practicable after obtaining such knowledge. ll notices required by this Part shall besent by certified mail to the Associate Director, Division ofEnforcement, BureauofConsumer i Protection, Federal Trade Commission, Washington, D.C. 20580.

XIIT IS FURTHER ORDERED that respondent Indoor Tanning Association and itssuccessors and assigns shall, within sixty 60) days after the date of service of this order file withthe Commission a true and accurate report, in writing, setting forth in detail the manner and formin which respondent has complied with this order. Within ten 1 0) days of receipt of writtennotice from a representative of the Commission, respondent shall submit additional true andaccurate written reports.

Page 6 of 8


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XIIThis 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 Conunission files acomplaint (with or without an accompanying consent decree) in federal court alleging anyviolation of the order, whichever comes later; provided however that the filing of such acomplaint will not affect the duration of:

A. Any Paragraph in this order that terminates in less than twenty (20) years; andB Tbis order s application to any respondent that is not named as a defendant in

such complaint; andC. This order if such complaint is filed after the order has terminated pursuant to thisParagraph.

Signed t h i s day of 2009.

APPROVED:

Mary K EngleAssociate DirectorDivision ofAdvertising Practices

David VladeckDirectorBureau ofConsumer Protection

INDOOR TANNING ASSOCIATIONBy:

[ADD NAME](ADD OFFICE]

FEDERAL TRADE COMMISSION

By: _Janet M EvansDivision ofAdvertising Practices

Page 7 of 8


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ATTACHMENT A[ON INDOOR TANNING ASSOCIATION LETTERHEAD]

IMPORT NT NOTICE BOUT GOVERNMENT CTION[insert addressee name][insert addressee address]Dear ITA Member or Affiliate:

In a recent lawsuit, the Federal Trade Commission (FTC) charged the Indoor TanningAssociation (ITA) wit making misleading representations in its advertising and marketing forindoor tanning. Among other things, the FTC alleged that ITA falsely claimed that indoortanning poses no risk to health, including no risk of skin cancer. In addition, the FTC allegedthan when ITA represented that indoor tanning caused the skin to generate vitamin D, ITA failedto disclose material facts about the risks of indoor tanning. ITA has agreed to send thisnotification to you as part of its settlement with the FTC.

ITA hereby requests that you immediately cease using all advertising and marketingmaterials previously provided by to you by ITA Among the materials you should no longer useare all of he materials contained on the CD-ROM issued in 2008, including the following:AB.cD

The "Melanoma Hype" print adThe "Overdose ofHysteria" videoThe "Communications: The Basics" guide andThe print ad with the tag line, "Time to rethink sun tanning?"The FTC complaint alleges that these ads contain representations that are false and/ormisleading.

For further information about the FTC s complaint and order, go to www.ftc. ov andsearch "Indoor Taruling Association."Very truly yours,

John OverstreetExecutive Director

Page 8 of 8


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Bureau ofConsumer ProtectionDivisionofAdvertising PracticesJanet M Evans

Attorney(201) 326-2125

Dan Mcinnis

UNITED STATES OF AMERICAFEDERAL TRADE COiv IMISSIONWASHINGTON , D C 20580

July 30, 2009

Akin Gump Strauss Hauer Feld LLP1333 New Hampshire Ave., N.W.Washington, D.C. 20036Re: Indoor Tanning Association, Matter No. 082-3159

Dear Dan:of the Indoor Tannin Association

As promised, I reviewed Nat I Comm. on Egg Nuhition v. F.TC. 570 F.2d 157 (1977),enforced as mod fied, 570 F.2d 164 (7 Cir.l978) ( NCEN'). You suggested that this case supportedthe proposition that some penumbra of free speech applies to statements on health issues, such thatITA should not be required to make the affirmative disclosures set forth in Part V of the order wehave provided to ITA In fact, NCENmakes clear that deceptive advertising by a non-profitorganization is actionable under the FTC Act. 570 F. dat 162.It would not be appropriate to replace the affirmative disclosures in Part V of the proposedITA order with a statement akin to the one required in Part IV of the NCENorder. The court'sdiscussion relating to the required additional statement in Part IV of the NCENorder delineates theextent to which NCEN was required to engage in cmTective advertising if it made furtherrepresentations about the relationship ofdietary cholesterol to hemi disease. Jd at 164. The remedyprovided in Part V of the proposed ITA order is not corrective advertising, but rather, informationthat will be essential to reduce the likelihood that deception will arise from any future claims aboutthe benefits of ndoor tanning. Further, theNCEN statement was based on the evidence at hand inthat case, at that time. Here, the evidence does not support the conclusion that a significantbody of

medical experts is of the opinion that indoor tanning is a safe and approptiate way to obtain Vitamin0 particularly given this week's Lancet Oncology publication, which I assume you have seen.I look forward to hearing from you, so we can start moving forward.


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Division of Advertising Practices

Robert T. WagnerChiefExecutive OfficerAEGIS Regulatory, Inc.1131 Anthem View LaneKnoxville, TN 3911Dear Mr Wagner,

UN ITED STATES OF AM ERICAFEDERAL TRADE COMMISSIONWASHINGTON, D.C. 20580

February 18, 2010

Thank you for your letter, dated February 4, 2010, regarding advertising for indoortanning. You commend the Commission s action against the Indoor Tarrning Association. Yourequest that, in addition, the Commission take action to address advertising about vitamin D byInternational Smart Tan Network, Inc.

The Federal Trade Commission has been directed by Congress to act in the interest of allconsumers to prevent deceptive or unfair acts or practices, pursuant to the Federal TradeCommission Act, 15 U.S.C. 41-58. In interpreting Section 5 of that statute, 15 U.S.C. 45,the Commission has determined that a representation, omission, or practice is deceptive if (1) itis likely to mislead consumers acting reasonably under the circumstances; and (2) it is material;that is, likely to affect consumers conduct or decisions with respect to the product at issue. 1 In astatute that became effective in August 1994, Congress amended Section 5 of the FTC Act toprovide that an act or practice is unfair if the injury to consumers it causes or is likely to cause(I) is substantial; (2) is not outweighed by countervailing benefits to consumers or tocompetition; and (3) is not reasonably avoidable by consumers themselves.2

1 Stouffer Foods Corp., 118F.T.C. 746, 798 1994);Krafl, Inc , 114F.T.C.40, 120( 1991), affirmed and enforced, 970 F.2d 311 7th Cir. 1992), cert Denied, 113 S. Ct. 1254(1993); Removatron lnt I Corp., 111 F.T.C. 206, 308-09 (1988), citing, e.g.. Southwest Sunsites,Inc. V FTC, 785 F.2d 1431 , 1436 (9 h Cir.), cert Denied, 107 S. Ct. 109 (1986); InternationalHarvester Co., 104 F.T.C. 949, 1056 ( 1984); Cliffdale Associates, Inc., 103 F.T.C. 110, 164-65(1984); see generally Federal Trade Commission Policy Statement on Deception, appended toCliffdaleAssocs., 103 F.T.C. at 174-83.

2 Section 5(n) of the FTC Act, 15 U.S.C. 45(n) , added by The Federal TradeCommission Act Amendments of1994, Pub. L No 103-312. The Commission previously reliedon similar criteria to define the scope of its authority to prohibit unfair acts or practices pursuantto Section 5(a) of the FTC Act. See, e.g. , Orkin Exterminating Co., Inc , 108 F.T.C. 263, 362(1986); International Harvester Co., 104 F.T.C. at 1061; see generally Federal Trade


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Robert Wagnerpage 2

In determining whether to take enforcement or other action in any particular situation theCommission may consider a number of factors including the type of violation alleged; thenature and amount of consumer injury at issue and the number of consumers affected; and thelikelihood ofpreventing future unlawful conduct and securing redress or other relief. s amatter of pol icy Commission investigations are nonpubl ic However letters from the publicprovide valuable information that is frequently used to develop or support Commissionenforcement initiatives.

[ appreciate your interest in this matter and [hope that you wi ll find the aboveinformation helpful.

Commission Policy Statement o Unfairness appended to International Harvester Co. 104FT C at 1070-76.

2


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r\K N l UMPSTH ;\ U S S H A U E R F E L D t t P ttorneys at Law

June 24, 2009

PURSUANT TO SETTLEMENT NEGOTIATIONS

VIA ELE TRONI MAILMs. Janet M. EvansDivision of Advertising PracticesFederal Trade Commission600 Pennsylvania Avenue, NWMail Drop S-4002.Washington, DC 20580

Re: Indoor Tanning Association, Inc., File No. 082-3159Dear Janet:

DANIEL F MCINNIS202.887.4359/fax: 202 .955 [email protected]

I have received your letter, dated June 22, 2009, in which you informed me that theFederal Trade Commission staffhas recommended that the FTC initiate an action against myclient the Indoor Tanning Association, a non-profit trade association that promotes responsiblesun care and sun burn prevention. You furthered asked that the IT respond by no later than July2, 2009, about whether the ITA would be willing to engage in discussions concerning the scopeof a possible settlement.

While I understand your desire for a quick resolution and I am generally always willingto discuss the possibility of an appropriate resolution, your proposed time table is unworkable.(b)(3):6(f),(b)(4)

While we respect the FTC s need to have reasonable time constraints in matters, we haveou for over six months after we at our su estion, voluntarily met with you to

RobertS . Strauss Building /1333 New Hampshire Avenue. N.W. Washington. D.C. 20036-1564/ 202.887.4000 fax : 202.887 4288/ akingump.com


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I : \S T IL \ l S S I I l E H L J 11 I

. ...ow- .. ...Janet Evansune 24, 2009Page 2

Gi ven our past cooperation and the ITA's need to make an informed decision, to be safe , Iask that you agree to a response date ofAugust 14 , 2009. Ofcourse, if the Board decides tomove forward with settlement talks earlier, we would do so.

Best regards,

~ ....Daniel F. Mcinnis


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Bureau ofConsumer ProtectionDivision of Advertising PracticesJanet M. Evans

Attorney(202) 326 2125

Dan Mcinnis

UN frED STATES OF AM ERlCAFEDERAL TRADE COMMISSIONWASHINGTON . D.C. 20580

August 27, 2009

Akin Gump Strauss Hauer Feld LLP1333 New Hampshire Ave., N.W.Washington, D.C. 20036Re: Indoor Tanning Association, Matter No. 082-3159

Dear Dan:I have received your letter ofAugust 21, 2009, wherein you state that, if a consentdecree is to be negotiated , the proposed decree must not place any limitations on statementsregarding health benefits. Given that the case challenges the Indoor Tanning Association's

many unsubstantiated and false representations regarding the health risks and benefits of indoortanning and ultraviolet radiation, this suggestion is a nonstarter. Further, this position appears tobe wholly inconsistent with our conversation of July 24, 2009, when you suggested that anappropriate order would model that entered in Nat I Comm. on Egg Nutrition v. F.T C , 570 F.2d157 (1977), enforcedas modified, 570 F 2d 164 7th Cir.1978) ( NCEN . The NCEN order, ofcourse, prohibited deceptive health claims.

In our letter of June 22, 2009, we provided you with a proposed order, and advised youthat we had on1y a limited time for this process. I specifically advised you on the telephone thatthe staffwould forward a recommendation to the Bureau in mid-September. Despite the factthat more than two months have passed, you have never submitted a counteroffer to the proposedorder we provided on June 22. I recommend that ITA provide us with a redline order promptly,if ITA wants to engage in actual negotiations.

To reiterate, if we have not received an acceptable signed agreement with ITA by midSeptember, we will forward a complaint recommendation.


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K I N G U M PS T R U S S H U E R F E L D L LP

Attorneys at Law

VIA HAND DELIVERYMr. David C VladeckDirectorBureau of Consum er ProtectionsFederal Trade Commission600 Pennsy lvania Avenue, NWWashington, D.C. 20580

Ocotber 2, 2009

Re: Indoor Tanning Association, Inc. File No. 082-3159Dear Mr. VJadeck:

DANIEL F. MCINNIS202.887.43591fax: [email protected]

Thi s Firm , along wi th Carr Maloney P C., represents th Indoor Tanning Association ( ITA ) inthe above-referenced matter. lT is a non-profit trade associa tion engaged in research andeducation efforts to promote responsible tanning.Last week, we were into m1ed by Jane t Evans of the Divi sion ofAdvertising Practices that shehad recommended to you that the Commiss ion pursue litiga tion against ITA. The basis of theproposed lawsuit would be statem made as pa1i of ITA 's ublic polic cam Spring of 2008. (b)(3):6(f},(b)(4) (3):6(f},(b)(4)(b)(3):6(f},(b)(4)

Ms. Evans, at the same time, informed us o r the first time- that she also was recommendingthat the Commission action include as a respondent JTA's Executive Director, John Overstreet.She a lso asked us to inform her as soon as possible whom would be representing Mr. Overstreetin this matter.

On behalf of ITA, we ask that ITA be g iven the traditional courtesy and oppmtunity to meet withyou so we can demo ate why this matter sho e closed with no further fonnal action. (b)(b)(3):21 (f) (b)(3):21 (f) (b)(3):21 (f) (b)(3):21 (f)

More importantly, Mr. Overstreet remains in the process of detenn ining who will represent himin this matter. Moreover, if Mr. Overstreet retains separate counsel, we assume his counse lwould need at least some short period of ime to ta milia1ize themselves with the matter.

Robert S. Strauss Building 11333 New Hampshire Avenue, N.W I Washington, D C. 20036 564 I 202.887.4000 I fax: 202 .88 7.4288 I www.akingump.comEAST 82 1484 1 v


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KI N G U M PT R U S S J f\ U E R F E L O L LPAnorneys at

Mr. David C VladeckOcotber 2. 2009Page 2

Accordingly, we are unable to propose a time to meet at thi s time and respectfully ask for yourpatience as we work through these issues. l.n the meantime, ITA is not commercial enterprise. Itsells nothing to the public It advertises nothing for sale to the public. It does not operate in thecommercial marketplace. h received no concrett: benefi ts from the public, tinancial orotherwise, through its public policy campaign. and the FTC Staff's proposed complaint seeks noconsumer remedies. There is no risk that any further passage of time will make ITA judgment-proof. Given these circumstances, we hope yo u agree that we can pencil in a fut ure meeting butnot set a date at this time.Thank yo u for yo ur consideration.

cc: M EngleJ. Evn ns 1

0802 2 ) ) ).1 EAST S2 1-l8t3 v2

Sincerely,j / ___Daniel Fenel Mcinnis


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K I N G U M PS T R U S S H U E R & F E L D L L P

Attorneys at Law

August 21 , 2009

DANIEL F. MCINNIS202.887.4359/fax: [email protected]

PURSUANT TO SETTLEMENT NEGOTIATIONSVIA ELECTRONIC MAIL AND U.S. MAILMs. Janet M. EvansDivision ofAdvertising PracticesFederal Trade Commission600 Pennsylvania Avenue, NWMail Drop S-4002.Washington, DC 20580

Re: Indoor Tanning Association, Inc.File No. 082-3159Dear Janet:I write on behalf of the Indoor Tanning Association to continue our dialogue about a possibleresolution of your investigation of ITA 's public policy campaign that touted the health benefits ofsunlight.As you know, in the spring of2 8, ITA a non-profit trade association engaged in research andeducation efforts to promote responsible tanning, launched a public policy m p i g n ~ ~ ~ 3 ) Ib) 3):6 f),b ) 4)

b) 3):6 f),b) 4) The campaign sparkedwide spread media interest and resulted in a robust public debate in which all sides of the issue,including dermatologists, health care professionals, and scientists, participated.

b) 3):6 f),b) 4)

Robert S. Strauss Building /1333 New Hampshire Aven ue, N.W. Was hington . D.C. 20036-1564 202.887.4000 tax 202.887.4288 www.akingump com


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KI N GUMPS TR US S H UE H FE LD L t. lAttor eysat w

Ms. Janet M. EvansAugust 21 2009Page 2

(b 3):6(f)' b)(6)

While ITA is willing to continue a dialogue about a possible resolution ITA wi ll not surrender itsrights to engage in public speech over sunlight benefits. According if a consent decree is to benegotiated the proposed decree must not place any limitations on statements regarding healthbenefits.Please let me know if you will agree to proceed in this fashion.

Best regards.r J / ~ l ::::

Daniel F Mcinnis


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A K I N G U M PS T R A U S S H A U E R F E L O L LP

Attorneys at Law

December 3, 2009

BY H ND DEL VERYChairman Commissioner Jon LeibowitzCommissioner Pamela Jones HarbourCommissioner William E KovacicCommissioner J. Thomas RoschFederal Trade Commission600 Pennsylvania Avenue, NWWashington, D C 20580

Re: Indoor Tanning Association, Inc. File No. 082-3159Dear Commissioners:

DANIEL F. MCINNIS202.887.43591fax : 202.887.4288dmcinnis@akingump com

CONFDENTI L

This Finn, along with Crowell Moting, represent the Indoo r Tanning AssociationITA), a non-profit trade association that advocates for safe, moderate tanning. On behalf of

ITA, we thank you for the oppor1unity to meet, and your consideration of IT A s positions andconcems about the FTC Staffs proposed complaint and order against ITA and its sole employee,John Overstreet. As we discussed, we believe that this matter implicates important policy issuesconcerning health policy and scientific advocacy, and it can and should be resolved.

(b)(3):6(f),(b)(4)

Robert S. Strauss u ldmg 11333 New Hampsh re Avenue. N.W. I Washmg ton. D.C. 200361564 2 02.887.4000 fax: 202.887.4288 I www.akingump .com


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t \ K I N G U M PS T R U S S H U E R F E L D L LP

ttorneys a aw

December 3, 2009Page 2(b)(3):6(f),(b)(4)

rn hopes of reaching a resolution without litigation, ITA is preparing a counterproposal toFTC Staffbased on its principles, described above. However, on Tuesday, FTC Staff told us thatwe only have a few days to negotiate or the Commission will vote out the proposed complaint.We do not believe that timeframe is reasonable The issues presented here are complex and willrequire consultation with 1TAs Board ofDirectors over the specific terms to enable us to presenta workable counterproposal. We, however, do want to move this process along, and ITAcommits to providing the Staffwith a written counterproposal within two weeks .

Therefore, we renew our request that the Commission send this matter back to the Staffwith instructions to seek a negotiated resolution that accommodates ITAs legitimate interest incontinuing the scientific debate. t a minimum, we respectfully request that the Commission notvote on the Staff recommendation until ITA has a reasonable time to make a counterproposal inlight of the recent meetings, which we will do by December 18

Please do not hesitate to contact us if you have any further questions. Thank you for yourconsideration of this matter.

cc: Debbie MattiesTawana DavisMarc Wine1manCarolyn L HannDavid VladeckMichael AtlesonMary EngleHeather HippsleyJanet Evans

Sincerely,1/L/11 l__Da}1Iel Ferrel McinnisAndrea T VavoneseCounsel for the Indoor Tanning Association

Wm. Randolph Smith, Crowell Moring LLPBridget E Calhoun, Crowell Moring LLP


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lfNITE STATES OF AMERICAFEDERAL TRADE COMMISSIONWASHINGTON, D.C. 20580

VlA E-MAILDaniel F Mcinnis, Esq.Akin Gump Strauss Hauer Feld, LLP1333 New Hampshire Ave., N.W.Washington, D.C. 20036Dear Mr . Mcinnis:

May 21 2008

I am writing in response to your request for an extension of time to respond to theCommission's May 12,2008 Civil Investigative Demand ( CID ) to the Indoor TanningAssociation, Inc. I hereby grant you an extension of time to respond to the CID, including thetime to file a motion to quash, until no later than June 19 2008.

Very truly yours,

MaryUngle (jAssociate Director


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UN ITE D ST TES OF M ERICAFEDERAL TRADE COMMISSIONW S HfNGTO N, D.C. 20580

VIA E-MAJLDaniel F. Mcinnis, Esq.Akin Gump Strauss Hauer Feld, LLP1333 New Hampshire Ave., N.W.Washington, D.C. 20036Dear Mr. Mcinnis:

June 4, 2008

I am writing in response to your request for an extension of time to respond to theCommission' s May 12, 2008 Civil Investigative Demand ( CID ) to the Indoor TanningAssociation, Inc. I hereby grant you an extension of time to respond to paragraphs l and 2 oftheSpecifications for Documents and Things portion of the CID until June 30, 2008. The remainingdocuments, things and interrogatory responses specified by the CID, shall be produced on orbefore July 10 2008.

Very truly yours,) ~ ~ ~Associate Director


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CONFIDENTIAL PROPOSAL 12/14/09UNITED STATES O AMERICAFEDERAL TRADE COMMISSION

In the Matter of ))INDOOR TANNING ASSOCIATION, )a corporation. )

File No. 082-3159AGREEMENT CONTAININGCONSENT ORDER

The Federal Trade Commission has conducted an investigation of certain acts andpractices of Indoor Tanning Association (proposed respondent). Proposed respondent, havingbeen represented by counsel, is willing to enter into an agreement containing a consent orderresolving the allegations contained in the attached draft complaint. Therefore,

IT IS HEREBY GREED by and between Indoor Tanning Association and counsel forthe Federal Trade Commission that:1 Proposed respondent Indoor Tanning Association is a Massachusetts corporation with itsprincipal office or place of business at 2025 M Street, N.W., Washington, D.C. 20036.2. 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; andC. 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 anduntil it is accepted by the Commission. f his agreement is accepted by the Commission, it,together with the draft complaint, will be placed on the public record for a period of thirty (30)days and information about it publicly released. The Commission thereafter may eitherwithdraw its acceptance of this agreement and so notify proposed respondent, in which event itwill take such action as it may consider appropriate, or issue and serve its complaint (in suchform as the circumstances may require) and decision in disposition of the proceeding.

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5. This agreement is for settlement purposes only and does not constitute an admission byproposed respondent that the law has been violated as alleged in the draft complaint, or that thefacts 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 suchacceptance is not subsequently withdrawn by the Commi ssion pursuant to the provisions ofSection 2.34 ofthe Commission's Rules, the Commission may, without further notice toproposed respondent, (1 issue its complaint corresponding in form and substance with theattached draft complaint and its decision containing the following order in disposition of theproceeding, and (2) make information about it public. When so entered, the order shall have thesame force and effect and may be altered, modified, or set aside in the same manner and withinthe 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's address as statedin this agreement by any means specified in Section 4.4(a) of the Commi ssion s Rules shallconstitute service. Proposed respondent waives any right it may have to any other manner ofservice. The complaint may be used in construing the terms of the order, and no agreement,understanding, representation, or interpretation not contained in the order or the agreement maybe used to vary or contradict the terms of the order.7. Proposed respondent has read the draft complaint and consent order. It understands thatit may be liable for civil penalties in the amount provided by law and other appropriate relief foreach violation of the order after it becomes final.

ORDERDEFINITIONS

For the purposes of this order, the following definitions shall apply:1 Unless otherwise specified, respondent shall mean the Indoor TanningAssociation, its successors and assigns, its officers when acting in active concert

or participation with the Indoor Tanning Association, and its executive director.2. Covered product or service shall mean any ultraviolet lamp or sunlamp product,as defined in 21 C.F.R. 1040.20; and any commercial facility where consumers

may use ultraviolet lamps or sunlamp products.3. Clearly and conspicuously means:

a. In print communications, the message shall be presented in a manner thatstands out from the accompanying text, so that it is sufficiently prominent,because of its type size, contrast, location, or other characteristics, for an

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ordinary consumer to notice, read and comprehend it;b In communications made through an electronic medium (such astelevision, video, radio, and interactive media such as the Internet, online

services and software), the message shall be presented simultaneously inboth the audio and visual portions of the communication. In anycommunication presented solely through visual or audio means, themessage may be made through the same means through which thecommunication is presented. n any communication disseminated bymeans of an interactive electronic medium such as software, the Internet,or online services, a disclosure must be unavoidable. Any audio messageshall be delivered in a volume and cadence sufficient for an ordinaryconsumer to hear and comprehend it. Any visual message shall presentedin a manner that stands out in the context in which it is presented, so that itis sufficiently prominent, due to its size and shade, contrast to thebackground against which it appears, the length of time it appears on thescreen, and its location, for an ordinary consumer to notice, read andcomprehend it; and

c. Regardless of the medium used to disseminate it, the disclosure shall be inunderstandable language and syntax. Nothing contrary to, inconsistentwith, or n mitigation of the disclosure shall be used in anycommunication.

4 Close proximity means on the same print page, web page, online service page,or other electronic page, and proximate to the triggering representation, and notaccessed or displayed through hyperlinks, pop-ups, interstitials, or other means.

5. Commerce shall mean as defined in Section 4 of the Federal Trade CommissionAct, 15 U.S.C. 44.

I.IT IS HEREBY ORDERED that respondent, directly or through any corporation,partnership , subsidiary, division, trade name, or other device, in connection with themanufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of any

covered product or service, in or affecting commerce, shall not represent, in any manner,expressly or by implication, including through the use of a product name, endorsement,depiction, or illustration, that:

A Tanning, including indoor tanning, does not increase the risk of skin cancer;B Tanning, including indoor tanning, is safe or poses no danger;

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C. Indoor tanning is approved by the government; andD. Indoor tanning is safer than tanning outdoors because in indoor tanning facilities,the amount of ultraviolet light is monitored and controlled.

II

IT IS FURTHER ORDERED that respondent, directly or through any corporation,partnership, subsidiary, division, trade name, or other device, in connection with themanufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of anycovered product or service, in or affecting commerce, shall not misrepresent, in any manner,expressly or by implication, including through the use of a product name, endorsement,depiction, or illustration, that:

A Research shows that vitamin D supplements may harm the body s ability to fightdisease; and

B. A study in the Proceedings of the National Academy of Sciences determined that(a) sun exposure does not cause skin cancer or melanoma, or that the risk of suchcancer is only hypothetical (b) that getting a tan is healthy; (c) that the risks ofnot getting enough ultraviolet light far outweigh the risk of skin cancer; or (d) thatvitamin D has been linked to significantly decreasing the risk of contracting lung,kidney, or liver cancer.

III.IT IS FURTHER ORDERED that respondent, directly or through any corporation,partnership, subsidiary, division, trade name, or other device, in connection with themanufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of anycovered product or service, in or affecting commerce, shall not make any representation,expressly or by implication, including through the use of a product name, endorsement,depiction, or illustration, about the safety, health-related efficacy or performance, or healthrelated risks or benefits, of any covered product or service; or about the sources, performance,efficacy, or health-related risks or benefits of vitamin D; unless the representation is non

misleading, and, at the time it is made, respondent possesses and relies upon competent andreliable scientific evidence that is sufficient in quality and quanti ty based on standards generallyaccepted in the relevant scientific fields to substantiate that the representation is true. or thepurposes of this Order, competent and reliable scientific evidence shall consist of tests, analyses,research, studies, or other evidence that have been conducted and evaluated in an objectivemanner by qualified persons, that are generally accepted in the profession to yield accurate andreliable results, and whose results are consistent with the body of reliable scientific evidence

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relevant to the representation.

IV.IT IS FURTHER ORDERED that respondent, directly or through any corporation,partnership, subsidiary, division, trade name, or other device, in connection with the

manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of anycovered product or service, in or affecting commerce, shall not misrepresent, in any manner,expressly or by implication, including through the use of a product name, endorsement,depiction, or illustration, the existence, contents, validity, results, conclusions, or interpretationsof any test, study, survey, or research; except that this paragraph shall not apply to claimsphrased as opinions unless a) they are not honestly held, b) they misrepresent the qualificationsof the holder or the basis of his opinion, or c) reasonable consumers are likely to interpret th mas implied statements of fact.

v

IT IS FURTHER ORDERED that respondent, directly or through any corporation,partnership, subsidiary, division, trade name, or other device,

Responsive documents - CREW: FTC: Regarding Indoor Tanning Association: 4/15/14 - batch three

Documents

Transcript of Responsive documents - CREW: FTC: Regarding Indoor Tanning Association: 4/15/14 - batch three