Via Facsimile and U.S. Mail
Mail Stop 6010
July 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 July 11, 2005 response and have the
following comments. In our comments, we ask you to provide us with
information so we may better understand your disclosure. After
reviewing this information, we may raise additional comments.
Management`s Discussion and Analysis of Financial Condition and
Results of Operations
Critical Accounting Policies and Estimates
Revenue Recognition, page 23
1. We are considering your response to prior comment 2 including
your
supplemental response dated July 11, 2005. Please provide us the
following information in a disclosure-type format to help us
evaluate
the adequacy of your proposed disclosure:
* Please provide a rollforward schedule for each type of accrual
included in the promotional program incentive accrual amount for
each
fiscal year presented.
* Please reconcile the rollforward of the product return accrual
for
fiscal 2004 and 2003 contained in your supplemental response to
comment 2(e) dated July 11, 2005 to the amounts in Schedule II on
page S-1 of your fiscal 2004 10-K. Please explain to us why the
amounts in your rollforward schedule are significantly different
from
the amounts in the financial statement schedule.
* Your supplemental response to comment 2(e) dated July 11, 2005
states that the Company does not have the ability to track returns
by
fiscal period of the original sale. In light of your inability to
distinguish activity between current and prior periods, please
explain to us how you can determine, and how your auditors are
able
to agree, for any period end, that the financial statements were
fairly stated, that no material errors were made and that you can
reasonably estimate the deductions from gross sales identified as
critical accounting estimates.
Liquidity and Capital Resources
EBITDA, page 36-37
2. We have read your response to prior comment 3; however, we
continue to believe that non-GAAP measures, such as EBITDA, that
eliminate recurring items are not permissible unless management
reasonably believes the financial impact of these items will
disappear or become immaterial within a near-term finite period.
Since the items excluded from EBITDA are significant components of
your business, the financial impact of these items will not
disappear
or become immaterial in the future. While Item 10(e) of Regulation
S-
K does not expressly prohibit the removal of recurring items,
Answer
8 of "Frequently Asked Questions Regarding the Use of Non-GAAP
Financial Measures" indicates that registrants must meet the
burden
of demonstrating the usefulness of any measure that excludes
recurring items, especially if that measure is used to evaluate
performance. The Answer to Question 8 of the Non-GAAP FAQ,
further
states it is permissible, and may be necessary, to identify,
discuss,
and analyze material items, whether they are recurring or non-
recurring in MD&A and it may be necessary to discuss the nature of
such items and their significance to an investor in evaluating the
company`s results of operations. We believe that material items
such
as depreciation, amortization, interest expense, and income taxes
should be discussed in MD&A but should not be eliminated or
adjusted
in connection with a non-GAAP measure. Please tell us how you
plan
to delete EBITDA as a supplementary non-GAAP operating performance
measure in your filings or provide additional supplemental
information to demonstrate why these measures provide useful
information to investors.
3. Further, your Form 10-Q for the quarter ended March 31, 2005
discloses that EBITDA as being the primary measure used by the
Company`s chief decision maker to evaluate the ongoing performance
of
its segments and operating units. This disclosure appears to be
inconsistent with your disclosure, in the segment information note
in
your Form 10-K, that the primary measures of performance are net
sales and pre-tax operating income or loss (prior to corporate
allocations) of each segment. It appears that you should either
eliminate your disclosure of EBITDA as a segment measure in MD&A
or
revise your segment information in the notes to the consolidated
financial statements to disclose EBITDA as a segment measure of
performance. Please provide us in a disclosure-type format how you
plan to eliminate this inconsistency.
General
4. Please file your correspondence dated July 11, 2005 on EDGAR.
* * * *
Please respond to the comments within 10 business days or
tell
us when you will provide us with a response. Please furnish a
letter
that keys your response to our comments and provides requested
information. Detailed letters greatly facilitate our review.
Please
file your letter on EDGAR under the form type label CORRESP.
You may contact Todd Sherman, Staff Accountant, at 202-551-
3665
or Don Abbott, Senior Accountant, at 202-551-3608 if you have
questions regarding the comment. In this regard, do not hesitate
to
contact me, at (202) 551-3679.
Sincerely,
Jim B. Rosenberg
Senior Assistant Chief
Accountant
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Harvey Kamil
NBTY, Inc.
July 26, 2005
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