Markets Wired

Following a public comment period, the Federal Trade Commission has approved final consent orders against four paint companies — Benjamin Moore & Co., Inc., ICP Construction Inc., YOLO Colorhouse, LLC, and Imperial Paints, LLC — that allegedly misled consumers through claims that their products were free of emissions and volatile organic compounds (VOCs).

According to the FTC’s complaints, announced in July 2017, the companies claimed their paints would not emit VOCs and other chemicals, including during and immediately after application. Some promotions also made explicit safety claims regarding babies, children, pregnant women, and other sensitive populations. However, the FTC alleged the companies had no evidence to support these claims.

The FTC also charged the companies with providing retailers marketing materials containing the misleading claims, and thus facilitating deception by retailers who sold their paint. Additionally, in its complaints against Benjamin Moore and ICP Construction, the FTC alleged that the companies marketed their paint using environmental seals without adequately disclosing that they had awarded the seal to their own products.

The final orders settling the FTC’s charges bar the companies from making unqualified emission-free and VOC-free claims unless, at all times during application and after, both content in and emissions from their paints are actually zero, or emissions are at “trace” levels, as defined in the orders.

The final orders also prohibit the companies from making other unsubstantiated health and environmental claims, and require Benjamin Moore and ICP Construction to disclose that seals appearing in their promotional materials are their own designations.

Response to Public Commenters and Business Guidance

During the public comment period, certain industry stakeholders requested that the Commission provide additional information regarding its analysis of “zero VOC” paint claims. In response to those requests, the Commission sent letters to the commenters providing additional guidance and clarifications.

First, the current final orders are consistent with the Commission’s analysis of “zero VOC” paint claims, which has evolved in response to changes in the marketplace including changes in the VOC content in tints and the low cost of available emission testing. Accordingly, marketers may want to consult the 2018 orders for guidance on what is adequate substantiation when making unqualified VOC-free claims for interior household paints. To clarify further that these orders represent the Commission’s current view, the FTC has rescinded its 2013 Enforcement Policy Statement Regarding VOC-Free Claims for Architectural Coatings.

Second, the orders provide that substantiating unqualified VOC-free claims and emission-free paint claims requires: 1) demonstrating the paint contains zero VOCs, and emits and produces zero chemicals at all times, beginning at application; or 2) alternatively, satisfying the “trace level of emission” test beginning at application or thereafter. 

However, because the Commission recognizes that marketers may rely on other approaches to comply with the law, the letters provide that, in lieu of emission testing demonstrating trace emission “at all times,” a marketer may substantiate “zero VOC” claims with evidence demonstrating the paint has trace levels of emission six hours or less after application (and thereafter), and contains no substance that could cause material harm to the health of the average adult (or specific population, if marketed to that segment) under normal anticipated use.

The content determination can rely upon, for example, a thorough constituent review, such as the one conducted in connection with the chemical hazard classification process required by state and federal regulatory bodies.

The Commission vote approving the final consent orders and letters to members of the public who commented was 2-0. (The staff contact is Katherine Johnson, Bureau of Consumer Protection, 202-326-2185)

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