Interpretive Release Statement of the Commission as to the applicability of theFederal securities laws to real estate investment trusts 33-4298, 34-6419, IC-3140

Tuesdab,
November
29,
Y960
	FEbERAL
REGISYER
	_
	12177
ventive
or
protective;
~
13.205
Sc~entiJie
or
other
relevant
~aets,
(sec.
6,
38
StAt.
721:
lb
U.B.C.
A8.
interpret
or
apply
sec.
6,
38
Stat.
719,
Aa
amended;
lb
II.$.C.
48)
[Cease
and
fleaist
order,
Noel
C.Genevuy,
dr.,
trading
as Contact
Lene Spe-
cta115tn,
New
Orleans,
La.,
Docket
7867,
Sep-
tember
28,
1980
J
7n
the
Matter
of
Noel
C. Genevay,
Jr.,
an
Individual,
Trading
Under
the
Name
of
Contact;Lens
Specialists
Consent
order
requiring
a
retail
seller
of "Air
Comfort"
contact
lenses
in
New
Orleans,
La.,
to
cease
advertising
falsely
in newspapers,
circulars,
etc.,
that
alI
persons
could
successfully
wear
his
said
contaet
lenses,
and
with complete
com-
fort;
that
the
lenses
were
unbreakable,
protected
the
entire
eye,
and
would
cor-
rect
alt
defects
in
vision
including
all
cases
requiring
bifocals.
The
o~•der
to cease
and
desist
is
as
follows:
It
fs
ordered,
That
the
Respondent,Noel C. Genevay,
Jr..
Lrading
under
the
name
of
Contact
Lens
Specialists,
or
any
other'
name,
his
representatives,
agents
	and
	employees,
	directly
	or
through
any
corporate
or other
device,
in
connection with
the
oft'erixa~
for
sale,
sale
or
distribution
of
contact
lenses,
do
forthwith
cease
and
desist
from,
directly
or
indirectly
;
1.
Disseminating or causing to
be
dis-
seminated
any
advertisement
by
means
of the
United
States mails ox
by
any
means
in
commerce,
as
"commerce"
9s
defined
in
the
Federal
firade
Commis-
sion
Act,
which
advertisement repre-
sents,
directly
or
by
implication,
that:(a>
Ali
persons
can
successfully
wear
his
contact
lenses
;
(b)
His
contact
lenses
wlll
correct
all
defects
of
vision;
(c) There
is
no
discomfort in
wearing
X115
COI1taCt
leTLSES;
(d)
All
persons
can wear Respond-
ent's
contact
lenses
all
day
without
dis-
Comfort;
or
that
any
person
can
wear
said
contact
lenses
all
day
without
dis-
comfort
except
after
that person
hasbecome
fully
adjusted
thereto;
(e)
Said
contact
lenses
are
an
ade-quate
substitute
for
bi-focal
eyeglasses
for
all
persons;
(f) Sa1d
contact
lenses protect
the eye
unless limited
to the
smaD
portion
of
the
eYe that
is
covered thereby;
(g)
Said
contact
lenses
are
unbreak-
able;
2.
Disseminating, or causing
to
be
dis-
seminated,
any
advertisement,
by
anYmeans,
for
the purpose of
inducing,
or
which
is likely
to induce,
directly
or
in-
directly,
the Purchase
of
said products,
in
commerce,
as
"commerce"
is
defined
in
the
	Federal
Trade Commission
	Act,
which
advertisement contains
any
rep-resentation prohibited in
paragraph 1
above.
By
"Decision of the Commission",
etc.,
report of compliance
was
required
as
follows
It
is
ordered,
That
respondent Noel
C,
CienevaY,
Jr.,
an
individual, trading
un-
der the
name
of Contact Lens
SPecial-
ists, shall,
within sixty
(BO) days
after
service
upon him
of this order,
Ells
with
the
Commission
a
xeport
in
writing,
set'
ting
forth in
detail
the
manner
and
form
in
which
he
has
complied with
the
or-
der
to
cease
and
desist.
Issued:
September
28,
2960
By
the
Commission.
ISEAL~
	ROBERT
M.
PARRISH,.
Secretary.
F.R.
Doc.
GO
-11031;
Flled,
Nov.
28,
1960;
8:47
a.m.]
Title
91
--COMMODITY
AND
~s~cuRero~s
~xcHa~~~s
Chapter
11
--Securities
and
Exchange
Commission
[Release
No.
4288]
PART
2
3
1
--INTERPRETATIVE
	RE-
LEASES
RELATING
TO
SECURITIES
ACT
OF
1933
AiVD
GENERAL.
RULES
AIVD
REGULATIONS
THEREUNDER
j
Release
No.
8419
]
PART
2
4
1—INTERPRETATIVE
	RE-
LEASES
RELATING
TO
SECURITIES
EXCHi4NG~
	AC7
	O~
	1934
AND
GENERAL
	RULES
	AND
	REGULA-
TIONS
THEREUNDER
[Fteleflsp
N0.3140]
PART
2
71
--INTERPRETATIVE
	RE-
LEASES
RELAYING
TO
THE
INVEST-
MENT
COMPANY
	ACT
OF
1944
AND
GENERAL
RULES
AND
REGU-
LATIONS
THEREUNDER
§
231.4298
	Statement
of
the
Commis.
eion
us
to
the
applicability
of
the
Federal
securities
lows
to
real estate
investment
trusts.
heal
estate
investment
trust.
	The
Secwrities
and
Exchange Commission
has
received
a
number
of
inquiries
as
to
the
applicability
of
the
Federal
securities
laws
to
real
estate
investment
trusts
as
defined
in
a
recent
amendment
to
the
Internal Revenixa
Code
(Public
Law
86-
7'i9,
September
14,
1950)
.
This
amend-
ment
provides
substantially
the
same
talc
treatment
Por
qualified
trusts
which
are
substantially limited
to investments
in
real estate
and
real estate
mortgages
as
is
provided
for "regulated
investment
companies", but
it
does
not
amend
any
oY
the
statutes
administered
by
this
Commission.
A
real
estate
investment
trust
may
be
subject to the
provisions
oY
the
Federal
securities
laws,
depending
upon
the circumstances
involved
.in
of-
fering
its
securities
for
sale,
the nature
of such
securities,
and
the
oharacter of
the
trust's
investments.
The
amendment, among
other things,
requires that, in order
to qualify
for
the
special
tax treatment
	provided,
the
trust's securities
must
be
beneficially
owned by
100 or
more
persons,
zn
view
04 the
number
of
beneficial
owners
re-
quired,
it
appears
unlikely
that the scope
oY
the
offering
could
be
so limited
as to
make
available
the exemption
provided
in the second
clause oY section
4
('1)
of theSecurities
Act
oY 1933 for transactions
by
an
issuer
not
involving
a
public
offer-
ing.
Thus,
consideration
should
be
given
to
seotion
5
oY
that
Act which
requires
that,
unless
an
exemption
is
available,
a
registration
statement
must
be
filed
before
a
public
offering
oP
securities
may
be
made
by any
means
of
transportation
or
communication
in
interstate
com-
merce
or
by
use oP
the
mails
and
that
such
statement
must
become
effective
be-
fore
any
sales
may
be
made
by
such
~u-
risdlctional
means.
Whether any
of the
exemptions
from
section
5
contained in
sections
3
and
4
would be
available
would
depend
on
the
facts
and
circumstancesof
each
case.
In
this
x•e~ard
it
should
be
noted that the
exemption
from
t)ae
x•egistration
of
securit9es
under
the
Se-
curities
Act
of
1933
provided
by
section
3(a)(11)
of
that
Act
for
certain intra-state
offerings
is
not
available
to
an
in-
vestment
company
registered
or
required
to
be
registered
under
the Investment
Company
Act
of
J,940.
A
x•eal
estate
investment
trust,
depend-
ing
upon
the
nature
oY
its
investment
portfolio
and
the nature
of the
securities
it
issues,
may
come
within
the
det~nition
of
an
investment
company
as
contained
in
section
'3
(a)
of
the
Investment
Com-
pany
Act
of
1940, in
which
event,
absent
an
available
exemption
or
exception,
re~istratiott
of
the
trust
under
that
Actwould
be
xeciuired.
One
exception
from
the
requirements
of
the
Act which
may
be
aPPlicable
to
a
real estate
investment
trust
	is
	that
	contained
	in
	section
3(c)(6)(C> of
the 1940
Act
fora
com-
pany
primarily
engaged
9n
the
business
of
~
"purchasing
or
otherwise acquiring
mortgages
and
other
liens
on
and
inter-ests
in
real
estate"
and
not "engaged
in
the
business
of
issuing
face
-amount
cer-
tiflcates
of
the
installment type
ox
Aeri-
odic
payment
plan
certificates."
Thus,'in
cleterminin~
the
applicability
oY
the
exception
contained in
section
3(c)
(6)
(C),
the
character of
the
trust's
assets
must
be
considered.
In
this
re-spect,
no
question
would be
raised
where
a
real estate
investment
trust invested
exclusively
in fee
interests
in
real
estate
ox
mortgages or
liens
secured
by
zeal
estate.
A
trust,
however,
which
also
in-
vested
to
a
substantial
extent in other
real estate
investment
trusts.
(as
1s
per-
mitted
by
the
amendment)
or in
compa-
nies
engaged in
the
real estate
business
or in other
securities
might not
qualify
for
this
exception.
Questions
in
this
re-
spectcan be
determined only
on
the
basis
of
a
consideration of
the
facts
and
cir-
circumstances in
each
case.
The
other
question to
be
considered
in
determining the
availability
of the
sec-tlon"3(c)
(6)
(C)
exemption
is.the
nabure
of the
securities
issued
by
the
trust.
A
face
-amount
certificate
oP
the
install-
ment
type
1s
defined in
the Investment
Company
Act
of 1940 as
"any
certificate,
investment
contract,
or other
security
which
represents
an
obligation
on
the
part of
its
issuer to
pay
a
stated
sum
or
sums
at
a
fixed
ar determinable date or
dates
more than twenty
-Pour
months
after
the date of issuance, in
considez~a-
tlon
of the
payment
of
periodic
install-
ments
of
	a
	stated
	or determinable
amount
•
'
• 	A
periodic
paymentplan
certificate is
defined
as "(A) any

12178
certificate,
investment
contract,
or
other
security
providing
fox
a
series
of
peri-
odic
payments by
the
holder,
and
rep-
resenting
an
undivided
interest
fn
cer-
tain
speciRed
securities
or
in
a
unit
or
fund
of
securities
purchased
wholly
or
partly
with
the
proceeds
of
such
pay-
ments;
and
(B> &ny
security
the
issuer
of
which
is
also issuing
securities
of
the
character
described
in
Clause
(A)
and
the
holder
of
which
has
substantially
the
same
rights
and
privileges
as
those
which
the
holder
of
securities
of
the
character
described
in
Clause
<A) have
upon
com-
pleting
the
periodic
payments
for
which
such
securities
provide:
'
Consideration
should
also
be
given
to
whether the
broker
-dealer
registration
and
other
regulatory
provisions oY
the
Securities
Exchange
Act
of
1934
are
ap-
plicable
to
the
real
estate
investment
trust
and
those
who
sell
its
securities.
Copies of
the
amendment
to
the
in-
ternal
Revenue
Code
may
be
obtained
for
ten
cents
from
the
Superintendent of
Documents,
U.S.
Goverrunent
Printing
Office,
Washington
25,
D.C.
Noce:
The
text of
§§
241.8419
and
2?1.3140
are
	ldentScal
	w(th 	that
	appearing
	!n
§
231.4298,
By
the
Commission.
ISEAL~
	N6LLYE
A.
THOBSEN,
Assistant
Secretary.
NOVEMBER
18,
1960.
~F.kZ,
Doc.
80-1103b;
Filed,
Nov,
28, 1980;
8:48
a.m.]
Title
Z1—FOOD
AND DRUGS
Chapter
I—Food
and
Drug Adminis-
tration,
Department
of
Health,
Edu-
cafion,
and
Welfare
PART
121
--FOOD
ADDITIVES
Subpart
A
--Definitions
	and
	Proce-
duraland
Interpretative
Regulations
EXTENSION
OF
T~"FFECTIVE
DATE
OF
STATSTTE
FOR
CERTAIN
SPECICIED
FOOD
ADDITIVES
The
Commissioner
of
Food and
Drugs,
pursuant
to
the
authority provided in
the Federal
Food, Drug,
and
Cosmetic
Act
(sec.
6(c), Public
Law
85-929;
72
Star.
1788;
21
U.S.C.,
note
under
sec.
342)
and
	delegated
	to
him
	by
the
Secretary
of Health, Education,
and
Welfare
(25
F.R. 8625), hereby author-
izes
the
use
in
foods
of
certain additives
for
which
tolerances
have not
yet
been
established
or
petitions
therefor denied.
1.
Section
121.86
is
amended
by adding
thereto
the
following
items:
§
121.SC 	Extension
of
efTective
date
of
statute
for
certain specified
food
additives ue direct udditices
to
food.
On
the
basis
of
data
supplied In
ac-
cordance with §
121.85
and
findings
that
no undue
risk
to the
public
health
is
involved
and
that
conditions
exist
that
make
necessary the
prescribing
of
an
additional period
of time for obtaining
tolerances
or
denials
of
tolerances
or for
granting exemptions from
tolerances,
the following additives m~,y be used in
food, under
certain specified conditions,
RULES
AND
REGULATIONS
for
a
period
oY
1
year
from
March
6, 1980,
	or
exemptions
frown
the
requirement
of
or
until
regulations
shall
have
been
is-
	tolerances,
in
accoxd'ance
with
section
sued
establishing
or
denying
tolerances
	409
of
the
wet,
whichever
occurs
first:
Product
	I
	Llmits
	I
	SpeclHed
uses
or
restrlctlons
Dlmethylpolysilosane________________________________________________
Aseconstltuontotdetoamereusedinaproy
sdJpvants
on
(tufts
and
vegotables.
Dlsodlum
o6Bylenedfamine
tetreacetate_____._
16
parts
par
part
of
vl-
	As
on
std in
etnblltzing
vttamtn
Du
in
iamfn
s,,.
	anueous
mmt~vttauln
solutions.
Korosone,ddodortaed_________________________
1.0
part
per
mlllfon
	AsaconsWtirontotsprnyadjuventausedon
reatduul.
	(tufts
and
vegatpblas.
Non9lPhenoxy
polyethyleneoxy
othanol(0.6
	_____do_________________
mots
etLylene
oxido).
	As
n
cons6Uuont
o(spmy
edJuvants
used
on
Petrolomn
Rulfonate
(contalvtng
60
percent
____.do
................
	fruits
and
vcgetablav,
minernl
oil
and
60
percent
sultoneted
pe-
troleum
oil
of
molecWnr
weight
392).
Polyglyceryl
phthalato
ester
of
coconut
oil
_.___do________________
AsnsprayndJucnntontrultsandvogetnbles.
fatty
acids diluted
with
ethylene
dichlor-
ide.
1,1,1-Trlchlorootbane__________________________ ________________________
Aenco[~stltuontofcletonmersusedlnspray
ndjuvan6s
on
fruits
nud
vogetablas.
2.
Section
121.87
is
amended
by
adding
to
paragraph
(a)
the
following
items:
§
121.87
	Extension
of
eflectivc
date
o£
statute
for
certain specified
food
additives
as
indireet additives
to
food.
(a)
On
the
basis
oY
data
supplied
in
accordance
with
§
121.87
and
findings
that
no
undue
risk
to
the
public
health
is
involved
and
that
conditions
exist
that
make
necessary
the
prescribing
of 
an
additional period
oP
time
fox obtain-
ing
tolerances
or
denials
of
tolerances
or
for
granting
exemptions
from
tolerances,
the
following
additives
may
be
used
in
connection with
the
production,
pack-
aging
and
storage
of
food
Products,
under
certain
sAecifled
conditions
for
a
period
of 1
year
from
March
6,
1960,
or
until
regulations
shall
have
been
issued
in
accordance
with
section
409
oP
the
act,
whichever
occurs Srst:
Product
	I
	Limits
	I
	6pec1(led
uses
or
rastrlctions
totrnacetla
acid,
totraso-
nonobutyl
aLl~or____________
~btn[nad
by
wndensetlou
of
table
tatty
eclda
end
ethvl-
fed
nonyl~vauol
(0-10
mots
_______.___
,~>.
>no-polyoxyprapylene
glycol
------------
er,
molomilnr
weight
2000.
,lbenzone
sul(onnto--------_-- _-_--------
mplithalono
sul(onicacld
can
.
....:.......
formaldehyde.
.
•
.
	:::....:..........
~In
felt
-clowning
compound
usod
In
the
manufecturo
of
papor
and
paperUoord
products.
As
a
componout
o[
food
-packaging
ma
-
Notice
and
public
procedure
are
not
necessary
prerequisites
to the promul~a-
tion
of
this
ordex,
and
I
so
8nd,
since
extensions oY time,
under
certain
con-
ditions,
for the
effective
date
oY
the
food
additives
amendment
to the
Federal
Food,
Drug, and
Cosmetic
Act
were con-
templated
by
the
statute
as
a
relief
of
restrictions
	on
	the
	fooQ-Processing
industry.
E,~ecttve
date.
This
order
shall
be-
come
efYective
as
oP
the date
o4
signature.
(72
8tat. 1788;
21
U.S.C.,
note under
sec.
342)
Dated:
November
21, 1960.
ISEAL~
	~TOIiN
L. HARVEY,
Deputy
Commissioner
o~
Food and
Arugs.
[F.R.
Doc.
60-11041;
Filed,
Nov.
28,
Ifl80;
8:49 a.m.
~
PART
121—FOOD
ADbITIVES
Subpart
D—Food
Additives Permitted
in
Food
for
Human
Consumption
POLYSORBATE 80 ~POLYOXYETHYLENE
H2O)
SORBITAN
MONOOLEATE)
The
Commissioner
of
Food and
Drugs,
having evaluated the data submitted in
a
petition
filed
by Nopco Chemical
Com-
pany, 60 Park
	Place,
Newaxk,
New
Jersey,
and
other relevant material,
has
Mauufacturoofpaporendpaperboard.
-
':
__.-_-__I~In
lel~cleantng
compound
used
1n
ttie
manutacturo
of paper
and
pnparUoord.
concluded that
the
following
amendment
to the food
additive regulations
should
issue
in
conformance
with
section
409 0#
the
Federai
Food, Drug,
and
Cosmetic
Act,
with
respect to
the food
additive
polysorbate
80
(polyoxyethylene
(20)
sorbitan monoolea,te)
in frozen
desserts
as
an
emulsifier,
and
as
a
component
of
yeast
defoamer.
Therefore,
pursuant
to
the
provisions
of
the
act
(sec.
409(c)(1),
~2
Stat.
1786;
21
U.S.C.
348(c)
(1))
and
under the
authority delegated to
the
Commissioner
	by
	the
	Secretary 	of
Health, Education,
and
Welfaae (25 F.R.
8625)
:
It
is
ordered,
That
~
121.1009
of
Subpart
D
be
amended
as
set
forth
below:
In
§
121,1009,
the
introduction
to the
section,
the
section
headnote,
and
para-
graphs (c)
and (d)
are
changed
to
read:
§
121.1009
	Polyrorbato
	80
(~olyoxy-ethylene
(20)
eorbitun
mo~oolcate).
The
food
	additive polysorbate
	80
(polyoxyethylene
(20)
sorbitan
mono-
oleate),
which
is
a
mixture of polyoxy-
ethylene ethers of
mixed
partial oleic
acid
esters
oP
sorbiGol
anhydrides
and
related
compounds,
may
be
safely
used
in or
on
food in accordance with the
following prescribed conditions:
w
	•
	F
	1
(c) The
additive is
used or intended
for use as
follows: