Gesicherte Seite von
http://web.archive.org/web/20020207010816/http://www.ftc.gov/os/1998/9801/complt12.htm
UNITED STATES OF AMERICA, Plaintiff, v. ALPINE INDUSTRIES, INC., a corporation, and CIV. ACT. NO. COMPLAINT FOR CIVIL PENALTIES, Plaintiff, the United States of America, acting upon notification and authorization to the Attorney General by the Federal Trade Commission ("Commission"), for its Complaint alleges that: 1. Plaintiff brings this action under Sections 5(l), 9, 13(b) and 16(a) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. §§ 45(l), 49, 53(b) and 56(a), to obtain monetary civil penalties, and injunctive and other relief from defendants for their violations of a final order to cease and desist. JURISDICTION AND VENUE 2. This Court has jurisdiction over this matter under 28 U.S.C. §§ 1331, 1337(a), 1345 and 1355 and under 15 U.S.C. §§ 45(l), 49, 53(b) and 56(a). 3. Venue in the United States District Court for the Eastern District of Tennessee is proper under 15 U.S.C. § 53(b) and under 28 U.S.C. §§ 1391(b-c) and 1395(a). THE DEFENDANTS 4. Defendant Alpine Industries, Inc., is a Tennessee corporation with its office and principal place of business located within the Eastern District of Tennessee at 310 T. Elmer Cox Drive, Greeneville, Tennessee 37745. Alpine Industries, Inc., transacts business in the Eastern District of Tennessee. 5. Defendant William J. Converse is an officer of Alpine Industries, Inc. He resides within the Eastern District of Tennessee. His business address is the same as that of corporate defendant Alpine Industries, Inc. In connection with the matters alleged herein, William J. Converse transacts business in the Eastern District of Tennessee. 6. Individually or in concert with others, defendant William J. Converse has formulated, directed and controlled the acts and practices of Alpine Industries, Inc., including the various acts and practices set forth herein. PRIOR COMMISSION PROCEEDING 7. In a Commission proceeding bearing Docket No. C-3614, in which Alpine Industries, Inc., Living Air Corp. and William J. Converse were charged by the Commission with violating Section 5(a)(1) of the FTC Act, 15 U.S.C. § 45(a)(1), the Commission on September 22, 1995, issued against Alpine Industries, Inc., Living Air Corp. and William J. Converse, their officers, agents, representatives and employees, a consent order to cease and desist from making certain unsubstantiated claims in advertisements and promotional materials in connection with the manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of any air cleaning product in or affecting commerce, Alpine Industries, Inc., et al., C-3614 (September 22, 1995) (the "Commission's Order"). 8. The Commission's Order was served upon defendants Alpine Industries, Inc., Living Air Corp. and William J. Converse on October 2, 1995, and became final and enforceable upon service. It has remained in full force and effect since that date. 9. Copies of the Commission's Complaint and the Commission's Order are attached to this Complaint as Exhibit A. 10. The Commission's Order includes the following provisions: ORDER For the purposes of this Order, the following definitions shall apply: A. The term "air cleaning product" shall mean any product, equipment, or appliance designed or advertised to remove, treat, or reduce the level of any pollutant(s) in the air. B. The terms "indoor air pollutant(s)" or "pollutant(s)" shall mean one or more of the following: formaldehyde, sulfur dioxide, ammonia, trichlorethylene, benzene, chloroform, carbon tetrachloride, odors, nitrogen dioxide, mold, mildew, bacteria, dust, cigarette smoke, pollen, and hydrocarbons, or any other gaseous or particulate matter found in indoor air. * * * I. IT IS ORDERED that respondents Alpine Industries, Inc. and Living Air Corp., corporations, their successors and assigns, and their officers; William J. Converse, individually and as an officer of Alpine Industries, Inc. and Living Air Corp.; and respondents' agents, representatives, and employees, directly or through any corporation, subsidiary, division or other device, in connection with the manufacturing, labelling, advertising, promotion, offering for sale, sale, or distribution of any air cleaning product in or affecting commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from representing, in any manner, directly or by implication, A. such product's ability to eliminate, remove, clear, or clean any indoor air pollutant from a user's environment; or B. such product's ability to eliminate, remove, clear, or clean any quantity of indoor air pollutants from a user's environment; unless, at the time of making such representation, respondents possess and rely upon competent and reliable scientific evidence that substantiates the representation. II. IT IS FURTHER ORDERED that respondents Alpine Industries, Inc. and Living Air Corp., corporations, their successors and assigns, and their officers; William J. Converse, individually and as an officer of Alpine Industries Inc. and Living Air Corp.; and respondents' agents, representatives, and employees, directly or through any corporation, subsidiary, division or other device, in connection with the manufacturing, labelling, advertising, promotion, offering for sale, sale, or distribution of any air cleaning product in or affecting commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from representing, in any manner, directly or by implication, that: A. The use of ozone is more effective in cleaning or purifying indoor air than other air cleaning methods; B. The product does not create harmful by-products; or C. When used as directed, the product prevents or provides relief from any medical or health-related condition; unless at the time of making such representation, respondents possess and rely upon competent and reliable scientific evidence that substantiates the representation. III. IT IS FURTHER ORDERED that respondents Alpine Industries, Inc. and Living Air Corp., corporations, their successors and assigns, and their officers; William J. Converse, individually and as an officer of Alpine Industries, Inc. and Living Air Corp.; and respondents' agents, representatives and employees, directly or through any corporation, subsidiary, division or other device, in connection with the manufacturing, labelling, advertising, promotion, offering for sale, sale or distribution of any air cleaning product in or affecting commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from representing, in any manner, directly or by implication, the efficacy, performance, or health-related benefit of any such product, unless, at the time of making such representation, respondents possess and rely upon competent and reliable evidence, which when appropriate must be competent and reliable scientific evidence, that substantiates the representation. * * * * * DEFENDANTS' BUSINESS 11. Defendants are engaged in the manufacturing, labeling, advertising, promotion, offering for sale, sale and distribution of ozone generators, as air cleaning products, for use in homes, offices, other commercial establishments and automobiles, in or affecting commerce as "commerce" is defined in the FTC Act, 15 U.S.C. § 44. ORDER VIOLATIONS 12. Since about October 2, 1995, defendants, directly or through their authorized dealers, distributors and licensees, have disseminated advertising and promotional materials for their air cleaning products, including but not necessarily limited to the Living Air XL-15, the Living Air Peak, the Living Air 880, the Living Air Bora, the Com Air Eagle 5000, the San Air 150 HMA and the San Air 250 HMA. 13. These advertisements and promotional materials, including but not necessarily limited to those attached hereto as Exhibits B-1 to B-9, contain the following statements: A.Exhibit B-1 [Product Brochure] * * * * * LIVING AIR Clean, Fresh, Natural Air ARE YOU LIVING IN A SICK HOUSE? And is it making you sick, too? Many otherwise unexplained physical ailments can probably be traced to dust, various chemicals, bacteria and a host of other airborne pollutants trapped inside with you -- inside where you spend 90% of your time. Traditional Remedies Prove to be Ineffective Ventilation systems are usually very expensive, and experts now differ over their results. Air filters offer only a partial solution. Living Air looked to nature before designing the Model 880, a Thunderstorm in a Box. A Host of Pollutants Commonly Found Indoors •Dust •Pollen •Mold Spores •Mildew •Allergens •Bacteria •Formaldehyde •Benzene •Chloroform •Trichlorethylene •Odors * * * * * Unlock Nature's Air Cleaning Power Revitalize your indoor air at home with the power of a Living Air Model 880. The 880 replicates nature by emitting ozone and negative ions into the air. This effect, the same one created by a thunderstorm or waterfall, freshens otherwise stale indoor air by oxidizing airborne pollutants and knocking down floating particulate. ... * * * * * B.Exhibit B-2 [Product Brochure] The Solution you have been looking for. SIMPLE & EFFECTIVE SOLUTION Don't be left without an answer to indoor pollutants that are found just about everywhere you spend your time. Greatly reduce pollutants such as: MOLD MILDEW ODORS BACTERIA FUMES DUST POLLEN GASES CHEMICALS SMOKE STALE AIR PET DANDER MANY MORE! * * * * * Restaurants/Bars Office Home Workshops Hotel/Motel Now you have the solution! The Bora solution. Powerful yet quiet, needs no duct work or chemicals. Just plug in and enjoy the fresh air that only Living Air can bring you. ... * * * * * C.Exhibit B-3 [Product information pamphlet] Alpine Air Purification System Fresh as Mountain Air * * * * * For the first time in history, it may be safer to be in the wilderness than it is to be in our own home. Why? Because Americans spend 90% of their time indoors, breathing potential contaminants. Let's look at a typical home or office. Dust and dirt enter our home and are trapped in the pad of our carpet. Doctors advise us that dust is the last great medium of human infection. Germs have no means of locomotion except to attach themselves to particles of dust. Experts warn that fumes of various cleaning products can cause learning disabilities. There are actual cases of people who have been poisoned by the air in their homes. Dust mite excrement is highly prone to cause allergic reactions. These microscopic creatures live close to their food source--dead skin. Literally our bedding can become a cafeteria and breeding ground. The Ceiling? Styrene, Fiberglass, Wood -- all are porous materials that are convenient places for the accumulation of disease-causing pollutants. If we had to pay for the air we breathe, we would insist that it was pure and clean. And don't forget about the areas you can't see! Think of your duct work, full of mold, mildew, dust and bacteria. Why does this situation exist? Because modern homes and offices are becoming more energy efficient, allowing for almost no fresh air to be circulated into a room. * * * * * Is there a solution to this problem? Yes, there is! Since nature always has the best solution, let's look at the way nature cleanses the air. ... As nature's most powerful oxidizing agent, ozone completes nature's process of reducing contaminants to harmless natural substances. * * * * * ..., Alpine industries offers you air purification systems that recreate nature's own air purifying process. * * * * * Using ion generation to sweep contaminants from the air and then creating ozone molecules to oxidize and eliminate pollutants, Alpine will make the air in your home or your office mountain fresh. * * * * * Just listen to two of our thousands of satisfied customers: "Dear Alpine: Since you have introduced me to the Alpine products I have used them with patients who suffer from severe respiratory allergies. These machines are excellent for removing the various allergens from the environment. A patient had severe allergies, she used the machine for just a few days and she responded with a letter that said ..."I love it! I love it! I will never give it up! Thank you for this wonderful purifier." Sincerely, John E. Stauch, PhD., Immunologist * * * * * * "Dear Alpine: This marvelous little product came into my life at a time when it appeared I was headed for a life in a protective bubble because of my severe chemical sensitivities. Today, I am a working, highly productive individual. I am so thankful for this product. It has given me freedom. Sincerely, Evelyn Nelson, Real Estate. * * * * * D.Exhibit B-4 [Product Brochure] Are "Road Conditions" making you sick? DON'T SETTLE FOR LESS THAN THE PEAK SOLUTION! While the amount of time spent in our cars increases, so does our exposure to smog, gas and exhaust fumes. These "road conditions" will no longer have an effect on you when you plug in the PEAK air purification system. This powerful unit eliminates air pollution associated with heavy automobile traffic. "ROAD CONDITIONS" WILL NO LONGER HAVE AN EFFECT ON YOU WITH THE PEAK! * * * * * NEUTRALIZES GAS AND EXHAUST FUMES SMOG TOBACCO SMOKE DUST POLLEN CHEMICAL FUMES MOLD AND MILDEW BACTERIA E.Exhibit B-5 [Product brochure] Salon Aire The Salon Indoor Air Pollution Solution If you want clean, fresh, breathable air, put Salon Aire's Purification Systems to work in your salon! * * * * * Effectively Reduce: •Acrylic, color, perm odors •Cigarette smoke •Chemical gases •Pollens •Dust •Bacteria •Mold and mildew •Static electricity * * * * * Ozone/Activated Oxygen Generator Ozone/activated oxygen is a fast-acting oxidizer which destroys odors and other pollution in the air and at their source e.g. ... smoke, acrylic, perm and color odors. * * * * * F.Exhibit B-6 [Information Sheet] * * * * * What is Indoor Air Pollution? Smoke, odors, mildew, mold and dust are some of the indoor pollutants that are easy to see and smell. Others, like gases, certain chemicals, bacteria, pollen and static electricity are harder to detect. Formaldehyde is one example of an invisible pollutant. It enters the air from synthetic materials such as carpeting, upholstery and wall paneling. * * * * * What medical problems can it cause? Breathing problems are most common. Some people report dizziness, headaches, burning eyes, aching throats or loss of energy - symptoms often mistaken for colds or viruses, but disappear when victims leave the building. Allergies, depression, and chronic illness may also be a result. * * * * * What is Ozone? Ozone, a three atom form of activated oxygen, is a normal trace element in the earth's atmosphere. Because gaseous ozone is highly reactive, it readily oxidizes organic matter and kills bacteria and molds. * * * * * Why use Ozone? Ozone actually purifies the air through the process of oxidation. ... An ozone generator does not mask odors with perfume or chemicals. It oxidizes (changes the substance of) odor molecules. What are negative ions? ... Negative ions revitalize and freshen air. Fresh country air has a natural ion balance of 1,000 to 4,000 ions per cubic centimeter, with a ratio of 4 positive ions to 5 negative. Negative ions, like ozone, are also created as a result of nature's lightning storms and assist in purifying air. * * * * * Living Air Living Air is state of the art purification that no home or office should be without. Plugging it in is like opening a window in the mountains and letting in pure fresh air. ... Formaldehyde ... [text] Organic Gases ... [text] Molds ... [text] Asbestos ... [text] Gas, Wood & Coal ... [text]
G.Exhibit B-7 ALPINE MEDIA KIT * * * * * APPROVED ADVERTISING SAMPLES EXPERIENCE SPRING FRESH AIR ... with an AIR PURIFIER from LIVING AIR... Just plug it in and start revitalizing your air. Smoke Dust Pollens Odors Chemical Gases Bacteria Mold * * * * * H.Exhibit B-8 Media Kit * * * * * APPROVED ADVERTISING SAMPLES THUNDERSTORM in a BOX Simulate the same fresh air in your living room that a thunderstorm produces in nature. Living Air has successfully replicated nature's most powerful air cleaning agent and made it available at an affordable price. ... LIVING AIR provides the solution to indoor air pollution! ... * * * * * I.Exhibit B-9 Your Alpine Success and Evaluation Manual p. 26 No one really wants to breathe this stuff 24 hours per day! Indoor Air Pollutants DUST Did you know? 42,000 dust mites can live in only one ounce of dust! ... Airborne fragments cause eye irritation, allergies, eye-ear-nose-throat infections, asthma attacks, fatigue and depression. BACTERIA Did you know? Bacteria are found in your heating and cooling system, house pets, garbage, bathrooms -- everywhere in your home! Causes colds, flu, respiratory infections, eye infections... MOLD SPORES Did you know? Mold spores are found in your heating and cooling system, in damp clothing, cleaning materials and the moisture in your ceilings, walls, carpets, drapes... Causes allergies, sinus headaches, irritability, fatigue and depression.... p. 30 Limitations of Air Filtration Systems Media Filter -- Only the air that is filtered is affected. Air trapped in furniture, upholstery, or other fabrics does not get filtered nearly as often, and sometimes, not at all. Media Filter or Electronic Air Cleaner -- The only air that gets "filtered" is the air which is actually drawn through the unit. "Dirty" air constantly invades the space. Recirculates the same air and does not get the trapped air in furniture, fabrics, etc. p.40 * * * * * ... Consider, too, that air can be a medium for disease transmittal. Influenza can spread via contact to the nose or mouth or by coughs and sneezes. Contact can result from conversation (accidental spitting), a touch, or from an object passed from one person to another. Early in this century a deadly flu strain claimed 50,000 Americans. * * * * * p. 44 * * * * * Happy Customers The proof of Alpine's design has been demonstrated by experimentation. ... Asthmatics, sinus and allergy sufferers and others with an acute appreciation for good air are among our most appreciative clients. ... * * * * * p.154 Here are some sample info bullets: * * * * * ... It greatly reduces biological contaminants like bacteria, mold, fungi, yeast--even pollen. And it takes out chemical contaminants--paint fumes, carpet glue, dry cleaning chemicals, beauty salon chemicals. ... * * * * * FIRST CAUSE OF ACTION 14. Through the use of the statements contained in the advertisements and promotional materials referred to in paragraph 13, including but not necessarily limited to the advertisements and promotional materials attached as Exhibits B-1 through B-9, defendants, in connection with the manufacturing, labeling, advertising, promotion, offering for sale, sale or distribution of air cleaning products, have on numerous occasions represented, directly or by implication, that their air cleaning products effectively eliminate, remove, clear, or clean pollutants from indoor air. 15. Defendants have made the representations set forth in paragraph 14 without, at the time of making the representations, possessing and relying upon competent and reliable scientific evidence that substantiates the representations, thereby violating Parts I and III of the Commission's Order. SECOND CAUSE OF ACTION 16. Through the use of the statements contained in the advertisements and promotional materials referred to in paragraph 13, including but not necessarily limited to the advertisements and promotional materials attached as Exhibits B-1 through B-9, defendants, in connection with the manufacturing, labeling, advertising, promotion, offering for sale, sale or distribution of air cleaning products, have on numerous occasions represented, directly or by implication, that the use of ozone is more effective in cleaning or purifying indoor air than other air cleaning methods and that their air cleaning products prevent or provide relief from medical or health-related conditions. 17. Defendants have made the representations set forth in paragraph 16 without, at the time of making the representations, possessing and relying upon competent and reliable scientific evidence that substantiates the representations, thereby violating Parts II and III of the Commission's Order. CIVIL PENALTIES AND INJUNCTION 18. Since October 2, 1995, each dissemination by defendants of any advertisement or promotional material in violation of the Commission's Order, in one or more of the ways described above, constitutes a separate violation for which plaintiff seeks monetary civil penalties. 19. Section 5(l) of the FTC Act, 15 U.S.C. § 45(l), authorizes the Court to award monetary civil penalties of not more than $10,000 for each such violation of the Commission's Order that occurred prior to November 20, 1996. The Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, as amended, authorizes the Court to award monetary civil penalties of not more than $11,000 for each such violation of the Commission's Order that occurred after November 20, 1996. 20. Under Sections 5(l) and 13(b) of the FTC Act, 15 U.S.C. §§ 45(l) and 53(b), this Court is authorized to issue a permanent injunction against defendants' violating the FTC Act and the Commission's Order as well as to grant ancillary relief. PRAYER FOR RELIEF WHEREFORE, plaintiff requests this Court, pursuant to 15 U.S.C. §§ 45(l), 49, and 53(b), and pursuant to the Court's own equitable powers to: (1) Enter judgment against defendants and in favor of the plaintiff for each violation alleged in this Complaint; (2) Award plaintiff monetary civil penalties from defendants for each violation of the Commission's Order alleged in this Complaint; (3) Enjoin defendants from violating the Commission's Order issued in Docket No. C-3614; (4) Award plaintiff its costs and attorneys' fees incurred in connection with this action; and (5) Award plaintiff such additional relief as the Court may deem just and proper. DATED: December _____, 1997. Of Counsel: FOR THE UNITED STATES OF AMERICA:
|