Essentia Natural Memory Foam Company, Inc.; Analysis of Proposed Consent Order to Aid Public Comment, 46949-46950 [2013-18612]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 78, Number 149 (Friday, August 2, 2013)]
[Notices]
[Pages 46949-46950]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18612]


=======================================================================
-----------------------------------------------------------------------

FEDERAL TRADE COMMISSION

[File No. 122 3130]


Essentia Natural Memory Foam Company, Inc.; Analysis of Proposed 
Consent Order to Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed Consent Agreement.

-----------------------------------------------------------------------

SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices or unfair methods of competition. The attached Analysis to 
Aid Public Comment describes both the allegations in the draft 
complaint and the terms of the consent order--embodied in the consent 
agreement--that would settle these allegations.

DATES: Comments must be received on or before August 26, 2013.

ADDRESSES: Interested parties may file a comment at https://ftcpublic.commentworks.com/ftc/essentianmfoamconsent online or on 
paper, by following the instructions in the Request for Comment part of 
the SUPPLEMENTARY INFORMATION section below. Write ``Essentia, File No. 
122 3130'' on your comment and file your comment online at https://ftcpublic.commentworks.com/ftc/essentianmfoamconsent by following the 
instructions on the web-based form. If you prefer to file your comment 
on paper, mail or deliver your comment to the following address: 
Federal Trade Commission, Office of the Secretary, Room H-113 (Annex 
D), 600 Pennsylvania Avenue NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: Robin Moore (202-326-2167), FTC, 
Bureau of Consumer Protection, 600 Pennsylvania Avenue NW., Washington, 
DC 20580.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, 
notice is hereby given that the above-captioned consent agreement 
containing a consent order to cease and desist, having been filed with 
and accepted, subject to final approval, by the Commission, has been 
placed on the public record for a period of thirty (30) days. The 
following Analysis to Aid Public Comment describes the terms of the 
consent agreement, and the allegations in the complaint. An electronic 
copy of the full text of the consent agreement package can be obtained 
from the FTC Home Page (for July 25, 2013), on the World Wide Web, at 
https://www.ftc.gov/os/actions.shtm. A paper copy can be obtained from 
the FTC Public Reference Room, Room 130-H, 600 Pennsylvania Avenue NW., 
Washington, DC 20580, either in person or by calling (202) 326-2222.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before August 26, 2013. 
Write ``Essentia, File No. 122 3130'' on your comment. Your comment--
including your name and your state--will be placed on the public record 
of this proceeding, including, to the extent practicable, on the public 
Commission Web site, at https://www.ftc.gov/os/publiccomments.shtm. As a 
matter of discretion, the Commission tries to remove individuals' home 
contact information from comments before placing them on the Commission 
Web site.
    Because your comment will be made public, you are solely 
responsible for making sure that your comment does not include any 
sensitive personal information, like anyone's Social Security number, 
date of birth, driver's license number or other state identification 
number or foreign country equivalent, passport number, financial 
account number, or credit or debit card number. You are also solely 
responsible for making sure that your comment does not include any 
sensitive health information, like medical records or other 
individually identifiable health information. In addition, do not 
include any ``[t]rade secret or any commercial or financial information 
which . . . is privileged or confidential,'' as discussed in Section 
6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 
4.10(a)(2). In particular, do not include competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and

[[Page 46950]]

you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 
4.9(c).\1\ Your comment will be kept confidential only if the FTC 
General Counsel, in his or her sole discretion, grants your request in 
accordance with the law and the public interest.
---------------------------------------------------------------------------

    \1\ In particular, the written request for confidential 
treatment that accompanies the comment must include the factual and 
legal basis for the request, and must identify the specific portions 
of the comment to be withheld from the public record. See FTC Rule 
4.9(c), 16 CFR 4.9(c).
---------------------------------------------------------------------------

    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/essentianmfoamconsent by following the instructions on the web-
based form. If this Notice appears at https://www.regulations.gov/#!home. you also may file a comment through that Web site.
    If you file your comment on paper, write ``Essentia, File No. 122 
3130'' on your comment and on the envelope, and mail or deliver it to 
the following address: Federal Trade Commission, Office of the 
Secretary, Room H-113 (Annex D), 600 Pennsylvania Avenue NW., 
Washington, DC 20580. If possible, submit your paper comment to the 
Commission by courier or overnight service.
    Visit the Commission Web site at https://www.ftc.gov to read this 
Notice and the news release describing it. The FTC Act and other laws 
that the Commission administers permit the collection of public 
comments to consider and use in this proceeding as appropriate. The 
Commission will consider all timely and responsive public comments that 
it receives on or before August 26, 2013. You can find more 
information, including routine uses permitted by the Privacy Act, in 
the Commission's privacy policy, at https://www.ftc.gov/ftc/privacy.htm.

Analysis of Agreement Containing Consent Order To Aid Public Comment

    The Federal Trade Commission (``FTC'' or ``Commission'') has 
accepted, subject to final approval, an agreement containing a consent 
order from Essentia Natural Memory Foam Company, Inc., a corporation 
(``respondent'').
    The proposed consent order has been placed on the public record for 
thirty (30) days for receipt of comments by interested persons. 
Comments received during this period will become part of the public 
record. After thirty (30) days, the Commission will again review the 
agreement and the comments received, and will decide whether it should 
withdraw from the agreement or make final the agreement's proposed 
order.
    This matter involves respondent's marketing and sale of memory foam 
mattresses. According to the FTC's complaint, respondent represented 
that its mattresses do not contain volatile organic compounds 
(``VOCs''), are chemical-free, have no VOC off-gassing, lack the odors 
commonly associated with memory foam, and are made with 100% natural 
materials. The complaint alleges that respondent did not possess and 
rely upon a reasonable basis substantiating these representations when 
it made them. Moreover, the complaint alleges that respondent claims 
that tests show that the memory foam used in respondent's mattresses is 
free of VOCs and Formaldehyde. The complaint alleges that tests do not 
support these claims. Thus, the complaint alleges that respondent 
engaged in deceptive acts or practices in violation of Section 5(a) of 
the FTC Act. Thus, the complaint alleges that respondent engaged in 
deceptive practices in violation of Section 5(a) of the FTC Act. The 
Commission does not typically challenge subjective claims, such as 
smell.\2\ However, a consumer acting reasonably under the circumstances 
is likely to interpret representations that a memory foam mattress 
lacks the common smell associated with memory foam to mean that the 
mattress is free of VOCs.
---------------------------------------------------------------------------

    \2\ See FTC, FTC Policy Statement on Deception, appended to 
Cliffdale Assocs., Inc., 103 F.T.C. 110, 174 (1984).
---------------------------------------------------------------------------

    The proposed consent order contains three provisions designed to 
prevent respondent from engaging in similar acts and practices in the 
future. Part I addresses the marketing of VOC-free mattresses. It 
prohibits respondent from making zero-VOC claims unless the VOC 
emission level is zero micrograms per meter cubed or the company 
possesses and relies upon competent and reliable scientific evidence 
that their mattresses contain no more than a trace level of VOCs based 
on the Green Guides' guidance on making free-of claims.\3\ It also 
prohibits respondent from making chemical-free claims.
---------------------------------------------------------------------------

    \3\ See Guides for the Use of Environmental Marketing Claims, 77 
FR 62, 122, 62,123 (Oct. 11, 2012).
---------------------------------------------------------------------------

    Part II addresses VOC claims, odor-free claims and comparative odor 
claims, environmental benefit or attribute claims, certain health 
claims made about mattresses, and natural claims. It prohibits such 
representations unless the representation is true, not misleading, and 
substantiated by competent and reliable scientific evidence.
    Part III addresses claims that testing supports respondents' 
advertising claims for its mattresses. It prohibits any 
misrepresentations about the existence, contents, validity, results, 
conclusion, or interpretations of any test, study, or research.
    Parts IV though VII require Essentia to: Keep copies of 
advertisements and materials relied upon in disseminating any 
representation covered by the order; provide copies of the order to 
certain personnel, agents, and representatives having supervisory 
responsibilities with respect to the subject matter of the order; 
notify the Commission of changes in its structure that might affect 
compliance obligations under the order; and file a compliance report 
with the Commission and respond to other requests from FTC staff. Part 
VIII provides that the order will terminate after twenty (20) years, 
with certain exceptions.
    The purpose of this analysis is to facilitate public comment on the 
proposed order. It is not intended to constitute an official 
interpretation of the complaint or the proposed order, or to modify the 
proposed order's terms in any way.

    By direction of the Commission.
Richard C. Donohue,
Acting Secretary.
[FR Doc. 2013-18612 Filed 8-1-13; 8:45 am]
BILLING CODE 6750-01-P