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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of

MOONLIGHT SLUMBER, LLC, 

a corporation 

FILE NO. 162-3128 

 

AGREEMENT CONTAINING

CONSENT ORDER

The Federal Trade Commission (“Commission”) has conducted an investigation of certain 

acts and practices of Moonlight Slumber, LLC (“Proposed Respondent”). The Commission’s 

Bureau of Consumer Protection (“BCP”) has prepared a draft of an administrative Complaint 

(“draft Complaint”). BCP and Proposed Respondent, through their duly authorized officers, 

enter into this Agreement Containing Consent Order (“Consent Agreement”) to resolve the 

allegations in the attached draft Complaint through a proposed Decision and Order to present to 

the Commission, which is also attached and made a part of this Consent Agreement. 

IT IS HEREBY AGREED by and between Proposed Respondent and BCP, that:

1. The Proposed Respondent is Moonlight Slumber, LLC, an Illinois corporation with its 

principal office or place of business at 300 Brook Street, Elgin, Illinois 60120. 

2. Proposed Respondent neither admits nor denies any of the allegations in the Complaint, 

except as specifically stated in the Decision and Order. Only for purposes of this action, 

Proposed Respondent admits the facts necessary to establish jurisdiction. 

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 

Decision and Order issued pursuant to this Consent Agreement. 

4. This Consent Agreement will not become part of the public record of the proceeding unless 

and until it is accepted by the Commission. If the Commission accepts this Consent Agreement, 

it, together with the draft Complaint, will be placed on the public record for 30 days and 

information about it publicly released. Acceptance does not constitute final approval, but it 
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serves as the basis for further actions leading to final disposition of the matter. Thereafter, the

Commission may either withdraw its acceptance of this Consent Agreement and so notify 

Proposed Respondent, in which event the Commission 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, which may include an Order. See Section 2.34 of 

the Commission’s Rules, 16 C.F.R. § 2.34. 

5. If this agreement is accepted by the Commission, and if such acceptance is not subsequently 

withdrawn by the Commission pursuant to Commission Rule 2.34, 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 and Order; and (2) make 

information about them public. Proposed Respondent agrees that service of the Order may be 

effected by its publication on the Commission’s website (ftc.gov), at which time the Order will 

become final. See Rule 2.32(d). Proposed Respondent waives any rights it may have to any 

other manner of service. See Rule 4.4. 

6. When final, the Decision and Order will 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 

Commission orders. 

7. The Complaint may be used in construing the terms of the Decision and Order. No 

agreement, understanding, representation, or interpretation not contained in the Decision and 

Order or in this Consent Agreement may be used to vary or contradict the terms of the Decision 

and Order. 

8. Proposed Respondent agrees to comply with the terms of the proposed Decision and Order 

from the date it signs this Consent Agreement. Proposed Respondent understands that it may be 

liable for civil penalties and other relief for each violation of the Decision and Order after it 

becomes final.
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MOONLIGHT SLUMBER, LLC

By:_________________________________ 

Name:_______________________________ 

Title:________________________________ 

Date:__________________ 

COUNSEL TO PROPOSED 

RESPONDENT

By: ________________________________ 

Kenneth M. Vorrasi 

Drinker Biddle & Reath LLP

1500 K Street N.W. 

Washington, D.C. 20005-1209 

T: (202) 842-8800 

F: (202) 842-8465 

Kenneth.vorrasi@dbr.com 

Date:__________________ 

FEDERAL TRADE COMMISSION

By:_________________________________ 

Amanda B. Kostner 

Attorney, Bureau of Consumer Protection 

APPROVED: 

By: ________________________________ 

James A. Kohm 

Associate Director, Enforcement Division

By: ____________________________ 

Thomas B. Pahl

Acting Director 

Bureau of Consumer Protection

Date:__________________ 

 
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162-3128

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Maureen K. Ohlhausen, Acting Chairman 

Terrell McSweeny

In the Matter of

MOONLIGHT SLUMBER, LLC, 

a corporation 

DECISION AND ORDER

DOCKET NO.

DECISION

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

practices of the Respondent named above 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, Respondent 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 Section 2.34 of its Rules, 16 C.F.R. § 2.34. Now, in further conformity with 

the procedure prescribed in 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 Moonlight Slumber, LLC is an Illinois corporation with its principal 

office or place of business at 300 Brook Street, Elgin, Illinois 60120. 

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

Respondent, and the proceeding is in the public interest.

ORDER

Definitions

For purposes of this Order, the following definitions apply: 

A. “Certification” means any seal, logo, emblem, shield, or other insignia that 

expresses or implies approval or endorsement of any product, package, service, practice, 

or program, or any attribute thereof.

B. “Clearly and conspicuously” 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 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.
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6. The disclosure must use diction and syntax understandable to ordinary 

consumers and must appear in each language in which the representation that 

requires the disclosure 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. 

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. 

C. “Competent and reliable scientific evidence” means tests, analyses, research, or studies 

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

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

D. “Covered product” means any mattress, blanket, pillow, pad, foam-containing product, or 

sleep-related product. 

E. “Emission” means any substance that is emitted by or produced during any normal use

of a covered product. 

F. “Respondent” means Moonlight Slumber, LLC and its successor and assigns.

G. “Trace level of emissions” means:

1. Emissions of the substance about which the claim is made do not result in 

inhalation concentrations of that substance higher than background levels in 

the typical residential home. 

2. Emissions of the substance about which the claim is made do not cause 

material harm that consumers typically associate with that substance, 

including harm to the environment or human health; and

3. The substance about which the claim is made has not been added intentionally 

to the covered product; 

H. “Volatile Organic Compound” (“VOC”) means any carbon-containing compound that 

evaporates at temperatures of 20 degrees to 25 degrees centigrade at air pressure of 101.3 

kPa. 
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I. Prohibited Misleading and Unsubstantiated Representations 

Regarding Environmental and Health 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, or sale of any covered product 

must not make any representation, expressly or by implication, including through the use of a 

product name, regarding: 

A. whether such product is in whole or part organic;

B. whether such product is in whole or part natural;

C. whether such product is in whole or part plant-based;

D. the content of such product; 

E. the emissions from such product; or 

F. the environmental or health benefits of such product, 

unless the representation is non-misleading, including that, at the time such representation is 

made, Respondent possesses and relies upon competent and reliable evidence, which when 

appropriate based on the expertise of professionals in the relevant area must be competent and 

reliable scientific evidence, that is sufficient in quality and quantity based on standards generally 

accepted in the relevant fields when considered in light of the entire body of relevant and reliable 

evidence, to substantiate that the representation is true. 

II. Prohibited Misleading and Unsubstantiated Representations

Regarding Emissions From Covered Products 

IT IS FURTHER 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, or sale of any covered 

product must not make any representation, expressly or by implication, that: 

A. the emissions from a covered product are zero;

B. the VOC emissions from a covered product are zero;

C. the emissions of any individual substance or substances from a covered product are zero; 

or 
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D. the emissions, VOC emissions, or emissions of any individual substance or substances 

from a covered product are zero in a particular circumstance, including at or after a 

particular point in time;

unless the representation is non-misleading, including that, at the time such representation is 

made, Respondent possesses and relies upon competent and reliable scientific evidence that is 

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 the covered product does not emit more than a trace level of emissions of the 

substance or substances about which the claim is made in the represented circumstance. 

III. Prohibited Misrepresentations Regarding Tests, Studies, or Other Research

IT IS FURTHER 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 covered product must not make any misrepresentation, expressly or by 

implication, concerning: 

A. the existence, contents, validity, results, conclusions, or interpretations of any test, study, 

or other research, including that studies, research, or trials prove that Respondent’s 

mattresses do not emit volatile organic compounds or off-gas; or 

B. any benefit of such product is scientifically or clinically proven or otherwise established. 

IV. Prohibited Misleading Certifications 

IT IS FURTHER 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, or sale of 

any covered product must not misrepresent, expressly or by implication: 

A. Whether, or the degree to which, a third party has evaluated a product, package, service, 

practice, or program based on its environmental or health benefits or attributes; or

B. Whether, or the degree to which, a certification is made by an independent person or 

organization. 

V. Disclosure of Material Connection

IT IS FURTHER 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 
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any product or service, must not make any representation, expressly or by implication, about any 

consumer, certifier, or other endorser of such product or service without disclosing, clearly and 

conspicuously, and in close proximity to the representation, any unexpected material connection 

between such endorser and (1) the Respondent or (2) any other individual or entity affiliated with 

the product or service. For purposes of this Provision, “unexpected material connection” means 

any relationship that might materially affect the weight or credibility of the testimonial, 

certification, or other endorsement and that would not reasonably be expected by consumers. 

Any certification that is awarded by Respondent to its own product creates an “unexpected 

material connection.” 

VI. Acknowledgments of the Order

IT IS FURTHER ORDERED that Respondent obtain acknowledgments of receipt of this 

Order: 

A. Respondent, within 10 days after the effective date of this Order, must submit to the 

Commission an acknowledgment of receipt of this Order. 

B. Respondent must deliver a copy of this Order to: (1) all principals, officers, directors, 

and LLC managers and members; (2) all employees, agents, and representatives who 

participate in conduct related to the subject matter of the Order; and (3) any business 

entity resulting from any change in structure as set forth in the Provision titled 

Compliance Report and Notices. Delivery must occur within 10 days after the effective 

date of this Order for current personnel. For all others, delivery must occur before they 

assume their responsibilities.

C. From each individual or entity to which Respondent delivered a copy of this Order, 

Respondent must obtain, within 30 days after delivery, a signed and dated 

acknowledgment of receipt of this Order.

VII. Compliance Report and Notices

IT IS FURTHER ORDERED that Respondent make timely submissions to the 

Commission:

A. Ninety days after the issuance date of this Order, Respondent must submit a compliance 

report, sworn under penalty of perjury, in which Respondent must: (1) 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; (2) identify all of Respondent’s businesses by all of their names, telephone 

numbers, and physical, postal, email, and Internet addresses; (3) describe the activities of 

each business; (4) describe in detail whether and how Respondent is in compliance with 

each Provision of this Order, including a discussion of all of the changes the Respondent 

made to comply with the Order; and (5) provide a copy of each Acknowledgment of the 

Order obtained pursuant to this Order, unless previously submitted to the Commission. 
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B. Respondent must submit a compliance notice, sworn under penalty of perjury, within 14 

days of any change in any designated point of contact or the structure of 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 the 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: Moonlight Slumber, C-. 

VIII. Recordkeeping

IT IS FURTHER ORDERED that Respondent must create certain records and retain each 

such record for 5 years. Specifically, Respondent must create and retain the following records:

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

B. Personnel records showing, for each person providing services, 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. Records of all consumer complaints concerning the subject matter of the Order , 

including complaints involving representations covered by Parts I, II, III, IV, or V of the 

Order, whether received directly or indirectly, such as through a third party, and any 

response; 

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

subject to this Order; 

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

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

2. All tests, analyses, research, studies, or other 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; and 

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

including all submissions to the Commission.

IX. 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. 

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. 

X. 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 20 

years from the date of its issuance (which is stated at the end of this Order, next to the 

Commission’s seal), 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: 

Any provision in this Order that terminates in less than 20 years;

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

A.
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complaint; and

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

provision. 

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.

Donald S. Clark 

Secretary

SEAL:

ISSUED: