82 FR 46243 - Moonlight Slumber, LLC; Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

Federal Register Volume 82, Issue 191 (October 4, 2017)

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

[Federal Register Volume 82, Number 191 (Wednesday, October 4, 2017)]
[Notices]
[Pages 46243-46245]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-21289]


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FEDERAL TRADE COMMISSION

[File No. 162 3128]


Moonlight Slumber, LLC; Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices. The attached Analysis to Aid Public Comment describes both 
the allegations in the 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 October 30, 2017.

ADDRESSES: Interested parties may file a comment online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write: ``In the Matter of 
Moonlight Slumber, LLC, File No. 1623128'' on your comment, and file 
your comment online at https://ftcpublic.commentworks.com/ftc/moonlightslumberconsent by following the instructions on the web-based 
form. If you prefer to file your comment on paper, write ``In the 
Matter of Moonlight Slumber, LLC, File No. 1623128'' on your comment 
and on the envelope, and mail your comment to the following address: 
Federal Trade Commission, Office of the Secretary, 600 Pennsylvania 
Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, or deliver 
your comment to the following address: Federal Trade Commission, Office 
of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, 
Suite 5610 (Annex D), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Amanda Kostner (202-326-2880) and Jock 
Chung (202-326-2984), 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

[[Page 46244]]

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 September 28, 2017), on the 
World Wide Web, at https://www.ftc.gov/news-events/commission-actions.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before October 30, 
2017. Write ``In the Matter of Moonlight Slumber, LLC, File No. 
1623128'' 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/policy/public-comments.
    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/moonlightslumberconsent 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 prefer to file your comment on paper, write ``In the Matter 
of Moonlight Slumber, LLC, File No. 1623128'' on your comment and on 
the envelope, and mail your comment to the following address: Federal 
Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., 
Suite CC-5610 (Annex D), Washington, DC 20580, or deliver your comment 
to the following address: Federal Trade Commission, Office of the 
Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 
5610 (Annex D), Washington, DC 20024. If possible, submit your paper 
comment to the Commission by courier or overnight service.
    Because your comment will be placed on the publicly accessible FTC 
Web site at https://www.ftc.gov, you are solely responsible for making 
sure that your comment does not include any sensitive or confidential 
information. In particular, your comment should not include any 
sensitive personal information, such as your or anyone else'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, such as medical records or other 
individually identifiable health information. In addition, your comment 
should not include any ``trade secret or any commercial or financial 
information which . . . is privileged or confidential''--as provided by 
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)--including in particular competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    Comments containing material for which confidential treatment is 
requested must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with FTC Rule 4.9(c). 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). Your comment will be kept 
confidential only if the General Counsel grants your request in 
accordance with the law and the public interest. Once your comment has 
been posted on the public FTC Web site--as legally required by FTC Rule 
4.9(b)--we cannot redact or remove your comment from the FTC Web site, 
unless you submit a confidentiality request that meets the requirements 
for such treatment under FTC Rule 4.9(c), and the General Counsel 
grants that request.
    Visit the FTC 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 October 30, 2017. For information on the 
Commission's privacy policy, including routine uses permitted by the 
Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

Analysis of Proposed 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 Moonlight Slumber, LLC (``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 the deceptive environmental and health claims 
respondent made regarding its baby mattresses. According to the FTC 
complaint, respondent made unsubstantiated representations that its 
mattresses are organic, natural, or plant-based and that its mattresses 
will not emit any substance, including volatile organic compounds, or 
off gas; claimed that testing proved that its mattresses do not emit 
volatile organic compounds; and represented that its mattresses have 
been certified by Green Safety Shield, yet failed to disclose that it 
has a material connection to the Green Safety Shield seal. Consumers 
likely interpret such seals as a claim that an independent third party 
certified the product. The complaint alleges that all of these claims 
are deceptive in violation of Section 5(a) of the FTC Act.
    The proposed consent order contains five provisions designed to 
prevent respondent from engaging in similar acts and practices in the 
future. Part I prohibits misleading representations regarding whether 
any mattress, blanket, pillow, pad, foam-containing product, or sleep-
related product is organic, natural, or plant-based; regarding the 
emissions from such product; and regarding the general environmental 
and health benefits of such product. The order requires respondent to 
possess competent and reliable evidence, including scientific evidence 
when appropriate, to substantiate these representations.
    Part II prohibits misleading representations regarding emissions-
free and VOC-free claims. The order requires competent and reliable 
scientific evidence to substantiate that a product does not emit more 
than a trace level of emissions of the substance about which the claim 
is made. The order defines ``emission'' to include all emissions (not 
just VOCs that cause smog). This definition reflects the Commission's 
Enforcement Policy Statement and consumer expectations: Consumers are 
likely concerned about the potential health effects from exposure to 
chemical emissions found in indoor air, not just

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VOCs that affect outdoor air quality. Consistent with the Green Guides, 
the order defines ``trace level of emissions'' for claims for a 
substance to mean that (1) emissions of the substance do not result in 
inhalation concentrations of that substance higher than background 
levels in the typical residential home; (2) emissions of the substance 
do not cause material harm that consumers typically associate with that 
substance, including harm to the environment or human health; and (3) 
the substance has not been added intentionally to the covered product.
    Part III prohibits respondent from mispresenting the results of any 
tests or studies, or from misrepresenting that any product benefit is 
scientifically or clinically proven. Parts IV and V prohibit respondent 
from misrepresenting certifications or failing to adequately disclose a 
material connection to a party making a representation, e.g., an 
endorser.
    Parts VI through X are reporting and compliance provisions. Part VI 
mandates that respondent acknowledge receipt of the order, distribute 
the order to certain employees and agents, and secure acknowledgments 
from recipients of the order. Part VII requires that respondent submit 
compliance reports to the FTC within ninety (90) days of the order's 
issuance and submit additional reports when certain events occur. Part 
VIII requires that respondent create and retain certain records for 
five (5) years. Part IX provides for the FTC's continued compliance 
monitoring of respondent's activity during the order's effective dates. 
Part X is a provision ``sunsetting'' the order after twenty (20) years, 
with certain exceptions.
    The purpose of the analysis is to aid public comment on the 
proposed order. It is not intended to constitute an official 
interpretation of the proposed order or to modify its terms in any way.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2017-21289 Filed 10-3-17; 8:45 am]
BILLING CODE 6750-01-P