Sherwin-Williams and PPG must tread carefully on future zero-VOC labeling claims, under a settlement just finalized with the Federal Trade Commission.
Not only that, but the FTC's announcement of the settlement was accompanied by a new enforcement policy statement—for all manufacturers—regarding VOC-free claims for architectural coatings.
The two-page statement is designed to "help advertisers avoid making unfair or deceptive claims," the commission said.
The final orders were released Wednesday (March 6), nearly five months after the FTC issued a proposed settlement with The Sherwin-Williams Company and PPG Architectural Finishes Inc. over allegations that the companies misled consumers to believe that some of their paints were free of volatile organic compounds (VOCs).
Both companies are banned from claiming their paints contain "zero VOCs," unless the products have zero VOCs after tinting or the companies can prove the claim with scientific evidence.
Consent Order Details
In settling the FTC complaints, the companies agreed to consent orders that forbid them from claiming that Sherwin-Williams’ Dutch Boy Refresh and PPG’s Pure Performance interior paints, respectively, contain “zero” VOCs.
The orders are the same for both PPG and Sherwin-Williams and carry no fines.
The orders “prohibit the companies from claiming that their paints contain ‘zero VOCs,’ unless, after tinting, they have a VOC level of zero grams per liter, or the companies have competent and reliable scientific evidence that the paint contains no more than trace levels of VOCs,” according to the FTC.
The companies must "clearly and prominently disclose that the ‘zero VOC’ claims apply only to the base paint, and that depending on the consumer’s color choice, the VOC level may rise,” the agency said.
(Left) Sherwin Williams; (Right) PPG Pittsburgh Paints
FTC said Sherwin Williams' and PPG's claims on Dutch Boy Refresh and Pure Performance interior paints, respectively, were misleading. The companies said they were implementing new practices to comply.
If the tinted paint’s VOC level could total 50 grams per liter or more, the companies must disclose that the VOC level may increase “significantly” or “up to [the highest possible VOC level after tinting].”
While the “zero VOC” claim may be true for uncolored base paints, it is not true for tinted products, which typically have much higher VOC levels and are more frequently purchased by consumers, the FTC said.
The orders also prohibit both the companies from providing anyone—including independent retailers and distributors—with the means of making any of the prohibited deceptive claims.
The FTC vote approving the final order and a letter to a member of the public who commented on it was 3-0-2, with Commissioners Jon Leibowitz and Joshua D. Wright not participating.
New Policy Statement
Following public comment on the two cases, the FTC decided to clarify language in the agency’s recently revised Green Guides for environmental marketing claims.
Paint and coating businesses must abide by the following three-part test to comply with 16 C.F.R. § 260.9(c).
“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.”
Carol M. Highsmith / Library of Congress
The cases prompted the Federal Trade Commission (above) to clarify language in its recently revised Green Guides for environmental marketing claims.
It is that first condition that the agency clarified with the new policy statement.
The "operative portion of the first prong of the FTC’s ‘trace test’ is ‘background level’ and not ‘acknowledged trace’ amount for VOCs in paint and coatings,” according to the FTC.
Thus, when companies market their paints and coatings as “free of” VOCs, they must comply with the first prong of the agency’s Green Guides’ trace test by demonstrating that “the level of the specified substance is no more than that which would be found” as a background level, and not the acknowledged trace amount.
The vote to issue the enforcement policy statement was 4-0-1, with Leibowitz not participating.
Policing the Market
“Environmental claims, like the VOC-free claims in this case, are very difficult, if not impossible, for consumers to confirm,” according to David Vladeck, director of FTC’s Bureau of Consumer Protection.
“That’s why it’s so important for the FTC to give clear guidance to marketers […] and to police the market to ensure that consumers actually get what they pay for.”
VOCs are carbon-containing compounds that easily evaporate at room temperatures. Some VOCs can be harmful to human health and the environment. Historically, interior paints have contained significant levels of VOCs.
Sherwin-Williams: New Practices
In an e-mailed statement, a Sherwin-Williams spokesman said the company had “reviewed its labeling and marketing information and is implementing the FTC's newly established practices.”
“Prior to the FTC's rejection of certain established industry practices for measuring VOC content, all S-W products, including Dutch Boy, followed the industry scientific testing practices for measuring VOCs,” according to Mike Conway, director of Corporate Communications & Investor Relations.
“S-W products previously complied and continue to comply with the strictest air quality regulations in the nation."
Conway added: “There is no issue with S-W product quality or environmental factors.”
Sherwin-Williams customers may call 1-888-304-3769 or email email@example.com for more information.
The Cleveland-based coatings manufacturer is the largest in the U.S. and the third-largest in the world. Its brands include Sherwin-Williams, Dutch Boy, Krylon, Minwax, and Thompson’s WaterSeal.
PPG: 'Comply Fully'
PPG said it had been “working with the Federal Trade Commission to increase clarity regarding the marketing of low or zero-VOC paints, and PPG intends to comply fully with the consent order,” according to a statement by Jeremy Neuhart, the corporate public relations manager.
“PPG’s Pure Performance interior base paints do not contain VOCs, and as such PPG’s ‘zero VOC’ marketing claims for Pure Performance apply only to the base paints.
“Colorants added to base paint may result in finished products containing varying levels of VOCs, depending on the colorants used,” Neuhart noted.
A subsidiary of PPG Industries Inc., PPG Architectural Finishes Inc. does business under its own name, as well as under the names PPG, Pittsburgh Paints, Porter Paints, Pure Performance Paints and Olympic stain. The company is headquartered in Pittsburgh, PA.