[Federal Register Volume 78, Number 149 (Friday, August 2, 2013)]
[Notices]
[Pages 46949-46950]
From the Federal Register Online via the Government Publishing 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
http://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 http://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 http://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 http://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 http://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