paint cansAs we previously blogged, the FTC went after several paint companies (Benjamin Moore, ICP, YOLO and Imperial Paints) for advertising that their paints were VOC-free when that claim was true only before colors were added to the paint. Time and technology march on, and several manufacturers thought they had solved this problem, proclaiming boldly that their colored paint offers “zero emissions,” “zero VOCs” and “no harsh fumes” with lots of pictures of cute babies and/or pregnant women.

But the FTC thought the paint wasn’t quite dry on these claims. While the Commission’s complaint and proposed consent do not articulate the substantiation problems in detail, several things seem clear. First, it does not appear that the claims are true during painting and immediately after the paint is applied. Second, it may be that there were at least trace emissions and VOCs during a more extended period of time. The proposed order prohibits the presence of more than trace amounts of emissions, with “trace” being a defined term (not intentionally added, the “trace” is not associated with material harm to consumers or environment, and any amounts beyond what is normally found in homes without interior architectural coating are “harmless.”) Finally, the complaint alleges that the companies did not have substantiation to support their specific claims of no risk to more vulnerable populations such as infants and pregnant women.

We often counsel clients that it’s not enough to have great substantiation; you also have to make sure that your claims match your substantiation, and this may be just such a case. These products appear to be a big step forward in the “greening” of paint (last pun, we promise) but the marketing claims, according to the FTC, got ahead of the science.

Finally, three other points worth noting. First, two of the parties (Benjamin Moore and ICP) also settled allegations that they failed to disclose that the “green seal” that appeared on their product was not a third-party certifier. Second, the companies were alleged to have provided distributors and retailers the “means and instrumentalities” to violate Section 5. And last, the Commission promised to harmonize its two prior paint orders if and when the proposed orders become final. Presumably the Commission will act to modify the definitions of “trace” and “zero” in the prior consents.