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1823038

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Joseph J. Simons, Chairman

Maureen K. Ohlhausen

Noah Joshua Phillips

Rohit Chopra

Rebecca Kelly Slaughter

In the Matter of

NECTAR BRAND LLC, a limited liability 

company, also d/b/a NECTAR SLEEP; 

DREAMCLOUD, LLC; and 

DREAMCLOUD BRAND LLC.

DECISION AND ORDER

DOCKET NO. C-4656

DECISION

The Federal Trade Commission (“Commission”) initiated an investigation of certain acts 

and practices of the Respondent named in the caption. The Commission’s Bureau of Consumer 

Protection (“BCP”) prepared and furnished to Respondent a draft Complaint. BCP proposed to 

present the draft Complaint to the Commission for its consideration. If issued by the 

Commission, the draft Complaint would charge the Respondent with violations of the Federal 

Trade Commission Act.

Respondent and BCP thereafter executed an Agreement Containing Consent Order 

(“Consent Agreement”). The Consent Agreement includes: 1) statements by Respondent that it

neither admits nor denies any of the allegations in the Complaint, except as specifically stated in 

this Decision and Order, and that only for purposes of this action, it admits the facts necessary to 

establish jurisdiction; and 2) waivers and other provisions as required by the Commission’s 

Rules.

The Commission considered the matter and determined that it had reason to believe that 

Respondent has violated the Federal Trade Commission Act, and that a Complaint should issue 

stating its charges in that respect. The Commission accepted the executed Consent Agreement 

and placed it on the public record for a period of 30 days for the receipt and consideration of 

public comments. The Commission duly considered any comments received from interested 

persons pursuant to Commission Rule 2.34, 16 C.F.R. § 2.34. Now, in further conformity with 

the procedure prescribed in Commission Rule 2.34, the Commission issues its Complaint, makes 

the following Findings, and issues the following Order:
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Findings

1. The Respondent is Nectar Brand LLC, also doing business as Nectar Sleep; DreamCloud, 

LLC; and DreamCloud Brand LLC, a California limited liability company, with its 

principal office or place of business at 2000 University Dr., Palo Alto, CA 94303.

2. The Commission has jurisdiction over the subject matter of this proceeding and over

Respondent, and the proceeding is in the public interest.

ORDER

Definitions

For purposes of this Order, the following definitions apply:

A. “Clear(ly) and conspicuous(ly)” means that a required disclosure is difficult to miss (i.e., 

easily noticeable) and easily understandable by ordinary consumers, including in all of 

the following ways:

1. In any communication that is solely visual or solely audible, the disclosure must be 

made through the same means through which the communication is presented. In any 

communication made through both visual and audible means, such as a television 

advertisement, the disclosure must be presented simultaneously in both the visual and 

audible portions of the communication even if the representation requiring the 

disclosure (“triggering representation”) is made through only one means.

2. A visual disclosure, by its size, contrast, location, the length of time it appears, and 

other characteristics, must stand out from any accompanying text or other visual 

elements so that it is easily noticed, read, and understood.

3. An audible disclosure, including by telephone or streaming video, must be delivered 

in a volume, speed, and cadence sufficient for ordinary consumers to easily hear and 

understand it.

4. In any communication using an interactive electronic medium, such as the Internet or 

software, the disclosure must be unavoidable.

5. On a product label, the disclosure must be presented on the principal display panel.

6. The disclosure must use diction and syntax understandable to ordinary consumers and

must appear in each language in which the triggering representation appears.

7. The disclosure must comply with these requirements in each medium through which 

it is received, including all electronic devices and face-to-face communications.
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8. The disclosure must not be contradicted or mitigated by, or inconsistent with, 

anything else in the communication.

9. When the representation or sales practice targets a specific audience, such as children, 

the elderly, or the terminally ill, “ordinary consumers” includes reasonable members 

of that group.

B. “Made in the United States” means any representation, express or implied, that a product 

or service, or a component thereof, is of U.S.-origin, including, but not limited to, a 

representation that such product or service is “made,” “manufactured,” “built,” or 

“produced” in the United States, or any other U.S.-origin claim.

C. “Respondent” means Nectar Brand LLC, also doing business as Nectar Sleep; 

DreamCloud, LLC; and DreamCloud Brand, LLC, and its successors and assigns.

Provisions

I.

PROHIBITED MISREPRESENTATIONS REGARDING U.S. ORIGIN CLAIMS

IT IS ORDERED that Respondent, and Respondent’s officers, agents, employees, and 

attorneys, and all other persons in active concert or participation with any of them, who receive 

actual notice of this Order, whether acting directly or indirectly, in connection with the 

manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of any 

mattress, mattress foundation, or any other product or service, must not make any representation, 

expressly or by implication, that a product or service is Made in the United States unless:

A. The final assembly or processing of the product occurs in the United States, all 

significant processing that goes into the product occurs in the United States, and all or 

virtually all ingredients or components of the product are made and sourced in the United 

States; or 

B. A Clear and Conspicuous qualification appears immediately adjacent to the 

representation that accurately conveys the extent to which the product contains foreign 

parts, ingredients or components, and/or processing; or

C. For a claim that a product is assembled in the United States, the product is last 

substantially transformed in the United States, the product’s principal assembly takes

place in the United States, and United States assembly operations are substantial.

II.

SUBSTANTIATION

IT IS FURTHER ORDERED that Respondent, Respondent’s officers, agents, servants, 

employees, and attorneys, and all other persons in active concert or participation with any of 

them, who receive actual notice of this Order, whether acting directly or indirectly, in connection 
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with promoting or offering for sale any product or service, shall not make any representation, in 

any manner, expressly or by implication, regarding the country of origin of any product or 

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

possesses and relies upon a reasonable basis for the representation.

III.

COMPLIANCE REPORTS AND NOTICES

IT IS FURTHER ORDERED that Respondent make timely submissions to the 

Commission:

A. One year after the issuance date of this Order, Respondent must submit a compliance 

report, sworn under penalty of perjury, in which Respondent must: (a) identify the 

primary physical, postal, and email address and telephone number, as designated points 

of contact, which representatives of the Commission, may use to communicate with 

Respondent; (b) identify all of that Respondent’s businesses by all of their names, 

telephone numbers, and physical, postal, email, and Internet addresses; (c) describe the 

activities of each business, including the goods and services offered, the means of 

advertising, marketing, and sales; and (d) describe in detail whether and how Respondent 

is in compliance with each Provision of this Order, including a discussion of all of the 

changes Respondent made to comply with the Order.

B. Respondent must submit a compliance notice, sworn under penalty of perjury, within 14 

days of any change in the following: (a) any designated point of contact; or (b) the 

structure of any Respondent or any entity that Respondent has any ownership interest in 

or controls directly or indirectly that may affect compliance obligations arising under this 

Order, including: creation, merger, sale, or dissolution of the entity or any subsidiary, 

parent, or affiliate that engages in any acts or practices subject to this Order.

C. Respondent must submit notice of the filing of any bankruptcy petition, insolvency 

proceeding, or similar proceeding by or against Respondent within 14 days of its filing.

D. Any submission to the Commission required by this Order to be sworn under penalty of 

perjury must be true and accurate and comply with 28 U.S.C. § 1746, such as by 

concluding: “I declare under penalty of perjury under the laws of the United States of 

America that the foregoing is true and correct. Executed on: _____” and supplying the 

date, signatory’s full name, title (if applicable), and signature.

E. Unless otherwise directed by a Commission representative in writing, all submissions to 

the Commission pursuant to this Order must 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: In re Nectar Brand LLC.
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IV.

RECORDKEEPING

IT IS FURTHER ORDERED that Respondent must create certain records for 20 years 

after the issuance date of the Order, and retain each such record for 5 years, unless otherwise 

specified below. Specifically, Respondent must create and retain the following records:

A. Accounting records showing the revenues from all goods or services sold, the costs 

incurred in generating those revenues, and resulting net profit or loss;

B. Personnel records showing, for each person providing services in relation to any aspect of 

the Order, whether as an employee or otherwise, that person’s: name; addresses; 

telephone numbers; job title or position; dates of service; and (if applicable) the reason 

for termination;

C. Copies or records of all consumer complaints and refund requests, whether received 

directly or indirectly, such as through a third party, and any response;

D. All records necessary to demonstrate full compliance with each provision of this Order, 

including all submissions to the Commission;

E. A copy of each unique advertisement or other marketing material making a representation 

subject to this Order;

F. For 5 years from the date of the last dissemination of any representation covered by this 

Order:

1. All materials that were relied upon in making the representation; and

2. All evidence in Respondent’s possession, custody, or control that contradicts, 

qualifies, or otherwise calls 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.

V.

COMPLIANCE MONITORING

IT IS FURTHER ORDERED that, for the purpose of monitoring Respondent’s 

compliance with this Order:

A. Within 10 days of receipt of a written request from a representative of the Commission, 

Respondent must: submit additional compliance reports or other requested information,

which must be sworn under penalty of perjury, and produce records for inspection and 

copying.
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B. For matters concerning this Order, representatives of the Commission are authorized to 

communicate directly with Respondent. Respondent must permit representatives of the 

Commission to interview anyone affiliated with Respondent who has agreed to such an 

interview. The interviewee may have counsel present.

C. The Commission may use all other lawful means, including posing through its 

representatives as consumers, suppliers, or other individuals or entities, to Respondent or 

any individual or entity affiliated with Respondent, without the necessity of identification 

or prior notice. Nothing in this Order limits the Commission’s lawful use of compulsory 

process, pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b-1.

VI.

ORDER EFFECTIVE DATES

IT IS FURTHER ORDERED that this Order is final and effective upon the date of its 

publication on the Commission’s website (ftc.gov) as a final order. This Order will terminate on 

August 28, 2038, or 20 years from the most recent date that the United States or the Commission 

files a complaint (with or without an accompanying settlement) in federal court alleging any 

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

complaint will not affect the duration of:

A. Any Provision in this Order that terminates in less than 20 years; and

B. This Order if such complaint is filed after the Order has terminated pursuant to this 

Provision.

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 Provision 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.

By the Commission, Commissioner Chopra dissenting.

Donald S. Clark

Secretary

SEAL:

ISSUED: August 28, 2018