Chemical and coating product suppliers have lived with the Federal Trade Commission's (FTC) Guides for the Use of Environmental Marketing Claims (the Green Guides) - enforcement guidelines on environmental advertising - for several years. The Green Guides have provided general guidance on "green" product claims but haven't always offered enough specificity for a particular product claim.
Following recent enforcement activity, the FTC added some specificity in a new enforcement policy statement regarding volatile organic compound (VOC)-free claims for paints and architectural coatings.
The Green Guides set forth the FTC's position on environmental marketing to help companies avoid making unfair or deceptive claims prohibited by Section 5 of the Federal Trade Commission Act. Although the Green Guides do not bind the FTC or the public, they do provide industry and consumers with guidance on instances in which the FTC is likely to take action if a marketer makes an environmental claim inconsistent with the guidelines.
Claims that a product is "free of" or "contains none of" an ingredient or chemical class are covered specifically by the Green Guides with the following general guidance:
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) (hereinafter "trace amount test").
What constitutes a trace contaminant or background level requires a case-by-case analysis of the substance at issue. The FTC recently issued specific guidance as to zero-VOC claims for architectural coatings. Specifically, a "trace level of VOCs" means:
- VOCs have not been intentionally added to the product.
- The presence of VOCs at that level does not cause material harm that consumers typically associate with VOCs, including but not limited to, harm to the environment or human health.
- The presence of VOCs at that level does not result in concentrations higher than would be found at background levels in the ambient air.
This definition of trace level of VOCs tailors the general trace amount test in light of consumer expectations. The FTC now takes the position that where a consumer can detect, usually by smell, the presence of VOCs during the application or drying of a coating, the coating contains more than a trace amount of VOCs and thus is not free of them.
Material harm. First, the definition of material harm specifically includes harm to the environment and human health because the FTC found that consumers consider both the environmental and health effects of VOC material in evaluating VOC-free claims for architectural coatings.
Trace level. In addition, trace level is defined as the background level of VOCs in the ambient air, rather than the level at which the VOCs in the paint or coating would be considered "an acknowledged trace contaminant," because the FTC found the harm consumers associate with VOCs is caused by emissions following application. In the FTC's view, measuring the impact on background levels of VOCs in the ambient air aligns with consumer expectations about VOC-free claims for coatings.
Zero-VOC level. Further, the Green Guides prohibit companies from representing that the VOC level of a paint or coating is zero unless, after tinting, the VOC level is zero grams per liter, or the company possesses and relies upon competent and reliable scientific evidence that the paint contains no more than a trace level of VOCs.
The FTC has set up a blog post to help businesses make environmental marketing claims regarding paint and coatings that comply with its new enforcement policy under the Green Guides. Companies may also wish to seek legal counsel regarding such claims.