Via Facsimile and U.S. Mail
Mail Stop 03-09
April 26, 2005
Mr. Harvey Kamil
Chief Financial Officer
NBTY, Inc.
90 Orville Drive
Bohemia, NY 11716
Re: NBTY, Inc.
Form 10-K for the fiscal year ended September 30, 2004
File No. 1-31788
Dear Mr. Kamil:
We have reviewed your filing and have the following
comments.
We have limited our review of the above referenced filing to only
those issues addressed. Where our comments call for disclosure, we
think you should amend your document in response to these
comments.
In some of our comments, we ask you to provide us with
supplemental
information so we may better understand your disclosure. Please
amend your Form 10-K for the fiscal year ended September 30, 2004
and
respond to these comments within 15 business days or tell us when
you
will provide us with a response prior to the expiration of the 15-
day
period. If we have requested additional information as well as an
amendment or if you disagree with any comment that calls for
disclosure, we will consider your explanation as to why our
comments
are inapplicable or a revision is unnecessary. Please provide this
letter prior to your amendment. You may wish to provide us with
marked copies of the amendment to expedite our review. Your
letter
should key your responses to our comments. Detailed letters
greatly
facilitate our review. Please file your letter on EDGAR under the
form type label CORRESP. Please understand that we may have
additional comments after reviewing your amendment and responses
to
our comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or on any other
aspect
of our review. Feel free to call us at the telephone numbers
listed
at the end of this letter.
Form 10-K for the fiscal year ended September 30, 2004
Management`s Discussion and Analysis of Financial Condition and
Results of Operations
Critical Accounting Policies and Estimates
Revenue Recognition, page 23
1. We believe your revenue recognition policy is not clear to
investors. Please expand your disclosures to clarify when title
and
risk of loss are transferred to the customer and address the
criteria
that persuasive evidence of an arrangement must exist before
revenue
can be recognized.
2. We believe that your disclosure related to estimates of items
that
reduce gross revenue such as product returns, chargebacks, rebates
and other sales allowances could be improved as follows:
a. Disclose the nature and amount of each accrual at the balance
sheet date and the effect that could result from using other
reasonably likely assumptions than what you used to arrive at each
accrual such as a range of reasonably likely amounts or other type
of
sensitivity analysis.
b. Disclose the factors that you consider in estimating each
accrual
such as historical return of products, levels of inventory in the
distribution channel, estimated remaining shelf life, price
changes
from competitors and introductions of generics and/or new
products.
c. To the extent that information you consider in b) is
quantifiable,
disclose both quantitative and qualitative information and discuss
to
what extent information is from external sources, such as end-
customer prescription demand, third-party market research data
comparing wholesaler inventory levels to end-customer demand. For
example, in discussing your estimate of product that may be
returned,
consider disclosing and discussing, preferably by product and in
tabular format, the total amount of product in sales dollars that
could be potentially be returned as of the balance sheet date and
disaggregated by expiration period.
d. If applicable, discuss any shipments made as a result of
incentives and/or in excess of your customer`s ordinary course of
business inventory level. Discuss your revenue recognition policy
for such shipments.
e. You should consider disclosing a roll forward of the accrual
for
each estimate for each period presented showing the following:
* Beginning balance,
* Current provision related to sales made in current period,
* Current provision related to sales made in prior periods,
* Actual returns or credits in current period related to sales
made
in current period,
* Actual returns or credits in current period related to sales
made
in prior periods, and
* Ending balance.
f. In your discussion of results of operations for the period to
period revenue comparisons, discuss the amount of and reason for
fluctuations for each type of reduction of gross revenue, i.e.
product returns, customer rebates and other discounts and
allowances,
including the effect that changes in your estimates of these items
had on your revenues and operations.
Liquidity and Capital Resources
EBITDA, page 36-37
3. We note that you present the non-GAAP measure EBITDA as a
measure
of your operating performance. The elimination of recurring items
from the most comparable GAAP measure appears to have the effect
of
smoothing earnings. While the acceptability of a non-GAAP
financial
measure that eliminates recurring items from the most comparable
GAAP
measure depends on all facts and circumstances, we do not believe
that a non-GAAP measure that has the effect of smoothing earnings
is
appropriate. In addition, we note that the items you exclude have
the following attributes.
? there is a past pattern of these items occurring in each
reporting period;
? the financial impact of these items will not disappear or
become
immaterial in the future; and,
? there is no unusual reason that the company can substantiate
to
identify the special nature of these items.
These attributes raise significant questions about management`s
assertions as to the usefulness of this measure for investors and
the
appropriateness of its presentation in accordance with Item 10 of
Regulation S-K. Please refer to Questions 8 and 9 of Frequently
Asked Questions Regarding the Use of Non-GAAP Financial Measures
on
our website at www.sec.gov/divisions/corpfin/faqs/nongaapfaq.htm.
Please revise your filing to remove all references to this measure
or
tell us how your disclosure complies with Item 10 of Regulation S-
K.
Summary of contractual cash obligations, page 38
4. We note your disclosure that you exclude interest payments from
your contractual obligations table. Please include interest
payments
in the table or disclose, and explain to us, why interest payments
are excluded. If you believe that interest payments should be
excluded from the table, please expand your liquidity and capital
resources disclosures to discuss the amount and timing of interest
payments necessary to understand your future cash requirements.
Please refer to section IV of Financial Reporting Release 72.
Quantitative and Qualitative Disclosures About Market Risk, page
41
5. Please expand your disclosure regarding your foreign currency
exchange rate risk to include the quantitative disclosures about
market risk using one of the three disclosure alternatives
required
by Rule 305(a) of Regulation S-K or tell us why these disclosures
were not provided.
Consolidated Financial Statements
Notes to Consolidated Financial Statements
9. Comprehensive Income, page F-25
6. We note you recorded a deferred income tax liability of
$13,939,000, including $5,302,000 for prior periods, relating to
accumulated other comprehensive income at September 30, 2004. You
disclose that prior to October 1, 2003, you had not recorded a
deferred income tax liability related to accumulated other
comprehensive income. Please explain to us why a deferred income
tax
liability related to this item was not recorded in periods prior
to
October 1, 2003 and demonstrate to us why amounts related to prior
periods were not material.
* * * *
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all information investors require.
Since the company and its management are in possession of all
facts
relating to a company`s disclosure, they are responsible for the
accuracy and adequacy of the disclosures they have made.
In connection with responding to our comments, please
provide,
in writing, a statement from the company acknowledging that
* the company is responsible for the adequacy and accuracy of the
disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff do not foreclose the
Commission from taking any action with respect to the filing; and
* the company may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in our review of your filing or in
response to our comments on your filing.
You may contact Todd Sherman, staff accountant, at 202-824-
5358
or Don Abbott, senior accountant, at 202-942-2819 if you have
questions regarding the comments. In this regard, do not hesitate
to
contact me, at (202) 942-1803.
Sincerely,
Jim B. Rosenberg
Senior Assistant Chief
Accountant
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Harvey Kamil
NBTY, Inc.
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