The Federal Trade Commission (FTC) recently settled charges with several paint manufacturers, including Benjamin Moore & Co., Inc., YOLO Colorhouse, LLC, and Imperial Paints, LLC regarding unsubstantiated claims that their paints are emission-free and/or do not contain volatile organic compounds (VOCs), including during and immediately after application. According to the allegations, the respondents made “zero-VOC” and emissions-related claims both directly, with statements like “Our products have NO VOCs, NO toxic fumes/HAPS-free, NO reproductive toxins, and No chemical solvents or other stinky stuff,” and indirectly, such as by showing a group of painters painting a bedroom while a baby sleeps in a crib nearby. In each of these cases the FTC alleged that the companies had no evidence to support the zero-VOC and emissions-related claims and did not qualify their claims (by stating, for example, “no VOCs after X hours”).

The proposed consent orders prohibit respondents from making misleading and unsubstantiated emission-free and zero-VOC claims, unless they can substantiate that the levels are actually zero or that the covered products do not emit or produce more than a trace level of emission from the time of application onwards. Further, respondents will be required to issue letters to distributors with materials to correct the misleading claims on product packaging. Finally, the companies are prohibited from making misleading and unsubstantiated representations regarding environmental and health claims and are prohibited from providing others with any “means and instrumentalities,” including advertising or promotional materials that contain false, unsubstantiated, or otherwise misleading representations.

In addition to the VOC and emissions claims discussed in all of the FTC complaints, the Benjamin Moore & Co., Inc. complaint alleged that Benjamin Moore’s use of a “Green Promise” seal on its paint products constituted unsubstantiated claims and deceptively implied that the paints had been endorsed or certified by a third party, rather than by Benjamin Moore itself, as is the case. Thus, the Benjamin Moore proposed FTC order adds two additional prohibitions against misrepresenting third-party certifications and failing to adequately disclose a material connection between Benjamin Moore and an endorser of its products.

TIP: Measureable, quantifiable claims about environmental or health benefits should be supported with adequate, competent, and reliable scientific evidence. In assessing the potential claims communicated, advertising will be examined in its full context, including the combination of visual and audio content.