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UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

COMMISSIONERS: Edith Ramirez, Chairwoman

Julie Brill

Maureen K. Ohlhausen

Joshua D. Wright

____________________________________

)

In the Matter of ) Docket No.

)

) AGREEMENT CONTAINING

Essentia Natural Memory ) CONSENT ORDER

Foam Company, Inc., )

a corporation. )

____________________________________)

The Federal Trade Commission has conducted an investigation of certain acts and 

practices of Essentia Natural Memory Foam Company, Inc. (“Proposed Respondent”). Proposed 

Respondent, having been represented by counsel, is willing to enter into an agreement containing 

a consent order resolving the allegations contained in the attached draft complaint. Therefore,

IT IS HEREBY AGREED by and between Proposed Respondent, by its duly authorized 

officers, and counsel for the Federal Trade Commission that:

1. Proposed Respondent is a Delaware Corporation with its principal office or place of 

business at 2760 Daniel Johnson, Laval, Quebec, Canada H7P5Z7. 

2. Proposed Respondent admits all the jurisdictional facts set forth in the draft complaint.

3. Proposed Respondent waives:

a. Any further procedural steps;

b. The requirement that the Commission’s decision contain a statement of findings 

of fact and conclusions of law; and

c. All rights to seek judicial review or otherwise to challenge or contest the validity 

of the order entered pursuant to this agreement.

4. This agreement shall not become part of the public record of the proceeding unless and 

until it is accepted by the Commission. If this agreement is accepted by the Commission, it, 

together with the draft complaint, will be placed on the public record for a period of thirty (30) 

days and information about it publicly released. The Commission thereafter may either 

withdraw its acceptance of this agreement and so notify Proposed Respondent, in which event it 
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will take such action as it may consider appropriate, or issue and serve its complaint (in such 

form as the circumstances may require) and decision in disposition of the proceeding.

5. This agreement is for settlement purposes only and Proposed Respondent neither admits 

nor denies the allegations in the draft complaint, other than jurisdictional facts, merely by 

entering into this agreement.

6. This agreement contemplates that, if it is accepted by the Commission, and if such 

acceptance is not subsequently withdrawn by the Commission pursuant to the provisions of 

Section 2.34 of the Commission’s Rules, the Commission may, without further notice to 

Proposed Respondent, (1) issue its complaint corresponding in form and substance with the 

attached draft complaint and its decision containing the following order in disposition of the

proceeding, and (2) make information about it public. When so entered, the order shall have the 

same force and effect and may be altered, modified, or set aside in the same manner and within 

the same time provided by statute for other orders. The order shall become final upon service. 

Delivery of the complaint and the decision and order to Proposed Respondent’s address as stated 

in this agreement by any means specified in Section 4.4(a) of the Commission’s Rules shall 

constitute service. Proposed Respondent waives any right it may have to any other manner of 

service. The complaint may be used in construing the terms of the order. No agreement, 

understanding, representation, or interpretation not contained in the order or in the agreement 

may be used to vary or contradict the terms of the order.

7. Proposed Respondent has read the draft complaint and consent order. It understands that 

it may be liable for civil penalties in the amount provided by law and other appropriate relief for 

each violation of the order after it becomes final.

ORDER

DEFINITIONS

For purposes of this order, the following definitions shall apply:

1. Unless otherwise specified, “Respondent” shall mean Essentia Natural Memory Foam 

Company, Inc., also doing business as Essentia, its successors and assigns, and its officers, 

agents, representatives, and employees.

2. “Commerce” shall mean as defined in Section 4 of the Federal Trade Commission Act, 

15 U.S.C. § 44.

3. “Competent and reliable scientific evidence” shall mean tests, analyses, research, or 

studies that have been conducted and evaluated in an objective manner by qualified persons, that 

are generally accepted in the profession to yield accurate and reliable results, and that are 

sufficient in quality and quantity based on standards generally accepted in the relevant scientific 

fields, when considered in light of the entire body of relevant and reliable scientific evidence, to 

substantiate that a representation is true.
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4. “Covered product” shall mean any mattress or component part. 

5. “Trace” level of VOCs or chemicals shall mean:

A. VOCs or chemicals have not been intentionally added to the product;

B. The presence of VOCs or chemicals at that level does not cause material harm 

that consumers typically associate with VOCs or chemicals, including, but not 

limited to, harm to the environment or human health; and

C. The presence of VOCs or chemicals at that level does not result in concentrations 

higher than would be found at background levels in the ambient air.

6. “Volatile Organic Compound” (“VOC”) shall mean any compound of carbon that 

participates in atmospheric photochemical reactions, but excludes carbon monoxide, carbon 

dioxide, carbonic acid, metallic carbides or carbonates, ammonium carbonate, and specific 

compounds that the EPA has determined are of negligible photochemical reactivity, which are 

listed at 40 C.F.R. § 51.100(s).

I.

IT IS ORDERED that Respondent, directly or through any corporation, subsidiary, 

division, trade name, or other device, in connection with the manufacturing, labeling, 

advertising, promotion, offering for sale, sale, or distribution of any covered product in or 

affecting commerce, shall not make any representation, in any manner, expressly or by 

implication, that: 

A. The covered product is VOC-free or free of harmful VOCs, unless the VOC 

emission level is zero micrograms per meter cubed (μg/m3

), or Respondent 

possesses and relies upon competent and reliable scientific evidence that the 

covered product contains no more than a trace level of VOCs; or

B. The covered product is free of chemicals.

II.

IT IS FURTHER ORDERED that Respondent, directly or through any corporation, 

subsidiary, division, trade name, or other device, in connection with the manufacturing, labeling, 

advertising, promotion, offering for sale, sale, or distribution of any covered product in or 

affecting commerce, shall not make any representation, in any manner, expressly or by 

implication, regarding:

A. The VOC level of such product; 

B. The fact that such product is odorless, or the odor or smell of any such product in 

comparison to another mattress(es) or its component part(s);
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C. Any other environmental benefit or environmental attribute of such product;

D. Any other health benefit or health attribute related to the VOC or chemical 

content of such product or exposure to such product;

E. Whether the product is non-toxic; or

F. Whether the product is made from natural materials;

unless the representation is true, not misleading, and, at the time it is made, Respondent 

possesses and relies upon competent and reliable scientific evidence that substantiates the 

representation.

III.

IT IS FURTHER ORDERED that Respondent, directly or through any corporation, 

subsidiary, division, trade name, or other device, in connection with the manufacturing, labeling, 

advertising, promotion, offering for sale, sale, or distribution of any covered product in or 

affecting commerce, is hereby permanently restrained and enjoined from misrepresenting, in any 

manner, expressly or by implication, including through the use of any product name or 

endorsement, the existence, contents, validity, results, conclusions, or interpretations of any test, 

study, or research.

IV.

IT IS FURTHER ORDERED that Respondent and its successors and assigns, shall, for 

five (5) years after the last date of dissemination of any representation covered by this order, 

maintain and upon request make available to the Federal Trade Commission for inspection and 

copying:

A. All advertisements and promotional materials containing the representation;

B. All materials that were relied upon in disseminating the representation; and

C. All tests, reports, studies, surveys, demonstrations, or other evidence in its 

possession or control that contradict, qualify, or call into question the 

representation, or the basis relied upon for the representation, including 

complaints and other communications with consumers or with governmental or 

consumer protection organizations.
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V.

IT IS FURTHER ORDERED that Respondent and its successors and assigns, shall 

deliver a copy of this order to all current and future principals, officers, directors, and managers, 

and to all current and future employees, agents, and representatives having responsibilities with 

respect to the subject matter of this order, and shall secure from each such person a signed and 

dated statement acknowledging receipt of the order. Respondent shall deliver this order to 

current personnel within thirty (30) days after the date of service of this order, and to future 

personnel within thirty (30) days after the person assumes such position or responsibilities. 

Respondent shall maintain and upon request make available to the Federal Trade Commission 

for inspection and copying all acknowledgments of receipt of this order obtained pursuant to this 

Part.

VI.

IT IS FURTHER ORDERED that Respondent and its successors and assigns, shall notify 

the Commission at least thirty (30) days prior to any change in the corporation that may affect 

compliance obligations arising under this order, including but not limited to a dissolution, 

assignment, sale, merger, or other action that would result in the emergence of a successor; the 

creation or dissolution of a subsidiary, parent, or affiliate that engages in any acts or practices 

subject to this order; the proposed filing of a bankruptcy petition; or a change in the corporate 

name or address. Provided, however, that, with respect to any proposed change in the 

corporation about which Respondent learns less than thirty (30) days prior to the date such action 

is to take place, Respondent shall notify the Commission as soon as is practicable after obtaining 

such knowledge. Unless otherwise directed by a representative of the Commission in writing, all 

notices required by this Part shall be emailed to DEbrief@ftc.gov or sent by overnight courier 

(not the U.S. Postal Service) to: Associate Director for Enforcement, Bureau of Consumer 

Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580. 

The subject line must begin: “Essentia Natural Memory Foam Company, Inc., File No. .”

VII.

IT IS FURTHER ORDERED that Respondent and its successors and assigns, within 

sixty (60) days after the date of service of this order, shall file with the Commission a true and 

accurate report, in writing, setting forth in detail the manner and form of its own compliance with 

this order. Within ten (10) days of receipt of written notice from a representative of the 

Commission, it shall submit additional true and accurate written reports.

VIII.

This order will terminate twenty (20) years from the date of its issuance, or twenty (20) 

years from the most recent date that the United States or the Federal Trade Commission files a 

complaint (with or without an accompanying consent decree) in federal court alleging any 

violation of the order, whichever comes later; provided, however, that the filing of such a 

complaint will not affect the duration of:
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A. Any Part in this order that terminates in less than twenty (20) years;

B. This order’s application to any Respondent that is not named as a defendant in 

such complaint; and

C. This order if such complaint is filed after the order has terminated pursuant to this 

Part.

Provided, further, that if such complaint is dismissed or a federal court rules that the Respondent 

did not violate any provision of the order, and the dismissal or ruling is either not appealed or 

upheld on appeal, then the order will terminate according to this Part as though the complaint 

had never been filed, except that the order will not terminate between the date such complaint is 

filed and the later of the deadline for appealing such dismissal or ruling and the date such 

dismissal or ruling is upheld on appeal.

Signed this day of , 2013

ESSENTIA NATURAL MEMORY FOAM COMPANY, INC.

By: ___________ 

JACK DEL’ACCIO Date

CEO

 ____________ 

LEONARD L. GORDON Date

Counsel for Essentia Natural Memory

Foam Company, Inc.
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 ___________ 

ROBIN MOORE Date

Counsel for Federal Trade Commission

 ___________ 

THOMAS GOODHUE Date

Counsel for Federal Trade Commission

APPROVED:

________________________________ 

LAURA KIM

Assistant Director

Division of Enforcement

________________________________ 

JAMES A. KOHM

Associate Director

Division of Enforcement

________________________________ 

CHARLES A. HARWOOD

Acting Director

Bureau of Consumer Protection