Orders require companies to show paint emits no harmful chemicals at the time paint is applied when making unqualified zero-emission/zero-VOC Claims

Four paint companies have agreed to settle Federal Trade Commission charges that they deceptively promoted products as emission-free or containing zero volatile organic compounds (VOCs), 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 four companies, Benjamin Moore & Co., Inc.ICP Construction Inc.YOLO Colorhouse, LLC, and Imperial Paints, LLC, have agreed to orders that would bar them 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 settlements also prohibit the companies from making other unsubstantiated health and environmental claims, and ensure that two of the companies disclose that seals appearing in their promotional materials are their own designations.

VOCs are carbon-containing compounds that easily evaporate at room temperatures. All paints emit chemicals during the painting process and while drying. Some of these chemicals can be harmful to the environment and people, especially to sensitive groups such as babies and those suffering from asthma or allergies.

In four separate complaints, the FTC charged each company with making unsubstantiated claims that their paints were free of emissions and/or that they contained no VOCs, without any qualification (e.g., after X number of hours). The FTC also charged the companies with 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 disclosing to consumers that they had awarded the seal to their own products.

Each of the proposed consent orders settling the charges against Benjamin Moore & Co., Inc., Imperial Paints, LLCYOLO Colorhouse, LLC, and ICP Construction Inc. contains four provisions designed to ensure the companies do not engage in similar conduct in the future.

First, they would prohibit the companies from making unqualified emission-free and VOC-free claims, unless both content and emissions are actually zero, or emissions are at trace levels, beginning at application and thereafter. The proposed orders’ definition of “trace level of emissions,” which generally tracks the Green Guides,’ “trace amount” test, requires, in part, that emission at that level does not cause material harm that consumers typically associate with emission from the covered product, including harm to the environment or human health.

Second, they would prohibit the companies from making claims about emission, VOC levels, odor, and other environmental or health benefits, unless they are true and not misleading, and unless the companies have competent and reliable scientific evidence to back them up.

Third, to correct existing unsubstantiated claims, the orders would require the companies to send letters to their distributors, instructing them to stop using existing marketing materials and providing stickers or placards to correct misleading claims appearing on product packaging or labeling.

Fourth, the orders would bar the companies from providing third parties with the means of making false, unsubstantiated, or misleading representations about material facts regarding paints described above.

The proposed orders against Benjamin Moore & Co., Inc. and ICP Construction Inc. contain two additional provisions, which would prohibit them from misrepresenting third-party certifications and failing to adequately disclose a material connection with an endorser.

The Commission vote to accept the consent agreements was 2-0. The FTC will publish a description of the consent agreement packages in the Federal Register shortly. The agreements will be subject to public comment for 30 days, beginning today and continuing through August 10, 2017, after which the Commission will decide whether to make the proposed consent orders final.

If the Commission finalizes the agreements’ proposed orders, it plans to propose harmonizing changes to two earlier consent orders issued in the similar PPG Architectural Finishes, Inc. (Docket No. C-4385) and The Sherwin-Williams Company (Docket No. C-4386) matters. Specifically, the Commission plans to issue orders to show cause why those matters should not be modified pursuant to Section 3.72(b) of the Commission Rules of Practice, 16 C.F.R. § 3.72(b).

Interested parties can submit comments electronically one or more of the proposed orders, including: Benjamin Moore & Co., Inc; Imperial Paints, LLCICP Construction Inc.; and YOLO Colorhouse, LLC.