On March 6, 2013, the Federal Trade Commission approved final orders settling charges that Sherwin-Williams and PPG Architectural Finishes had made false and unsubstantiated claims that some of their paints contained zero volatile organic compounds (VOCs) after tinting. These cases are the first applying the revised version of the FTC’s Green Guides. And while these cases and orders are tailored to the marketing of specific paints, they are also helpful in highlighting issues for anyone making environmental marketing claims, particularly “free of” claims.
VOCs are compounds of carbon capable of potentially harmful photochemical reactions at room temperature. The paint manufacturers Sherwin-Williams and PPG Architectural Finishes marketed certain paints as containing “zero” VOCs. While those statements were true for uncolored base paints, they were not true for paints that had been tinted (i.e., to which a colorant had been added). Most consumers purchase only tinted paints. The FTC found the marketing deceptive because it was not representative of how the paints were typically used.
Specifically, with regard to free-of claims, the Green Guides, as revised in 2012, advise marketers as follows:
Depending on the context, a free-of or does-not-contain claim is appropriate even for a product, package, or service that contains or uses a trace amount of a substance if: (1) the level of the specified substance is no more than that which would be found as an acknowledged trace contaminant or background level; (2) the substance’s presence does not cause material harm that consumers typically associate with that substance; and (3) the substance has not been added intentionally to the product. 16 C.F.R. § 260.9(c).
This “trace amount test” is designed to provide general guidance to marketers without regard to product, substance, or industry. As stated in footnote 4 of section 260.9(c), however, what constitutes a trace contaminant or background level depends on the substance at issue and requires a case-by-case analysis.
The orders tailored the Green Guides’ trace amount test in two key respects. First, the “material harm” prong specifically includes harm to the environment and human health, acknowledging that consumers find both the environmental and health effects of VOCs material in evaluating VOC-free claims for architectural coatings. Second, the orders define “trace level” as the background level of VOCs in the ambient air, as opposed to the level at which the VOCs in the paint would be considered “an acknowledged trace contaminant.” The harm that consumers associate with VOCs in coatings is caused by emissions following application. Thus measuring the impact on background levels of VOCs in the ambient air aligns with consumer expectations about VOC-free claims for coatings. (The manufacturers’ claims were considered deceptive because they exceeded background levels when applied.) In addition to approving the orders, the FTC issued a new enforcement policy statement regarding VOC-free claims for architectural coatings that addresses these points.
These cases have broader implications for marketers of products other than paints and architectural coatings, illustrating how the FTC may apply its Green Guides in future enforcement cases and the perspective that marketers must take when making claims about the environmental benefits of their products. The FTC has routinely stated that its primary concern is consumer perception. As demonstrated by these cases, marketers should be aware of how their products are being perceived and ultimately used by consumers and should evaluate their claims from those different viewpoints–that’s what the FTC will do. Further, marketers must have competent and reliable scientific evidence in support of their claims.