Building your VOCabulary

The FTC just accepted final settlements with two of the largest paint manufacturers in the country — Sherwin-Williams and PPG Architectural Finishes.  The complaints charged that the companies made deceptive “zero VOC” claims for their Dutch Boy Refresh and Pure Performance brands.  But along with the settlements, the FTC issued an Enforcement Policy Statement that's a must-read if you're thinking about making similar claims and want to comply with the FTC's Green Guides.

As outlined when the proposed settlements were first announced, the FTC charged that the companies' "zero VOC" claims may have been accurate for the uncolored base.  But buyers generally buy tinted paint, which may contain significant levels of VOCs.  That's why the orders prohibit the companies from claiming the VOC level of a paint is “zero” unless, after tinting, the level really is zero grams per liter or they have sound scientific evidence that the paint contains no more than a “trace level of VOCs.”

But there’s more you'll want to know about making “zero VOC” claims for paints, especially in light of the FTC’s 2012 revisions to the Green Guides.  The Green Guides offer advice to advertisers about when a “free of” claim is appropriate for products that contain a "trace amount" of the substance.  (A “zero” claim is a variation on that theme.)  Here is that three-part test:

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. 

For those keeping score at home, that’s at 16 C.F.R. § 260.9(c).

So along with the final settlements with Sherwin-Williams and PPG, the FTC has published an Enforcement Policy Statement that addresses questions about how to read those orders in conjunction with the relevant section of the Green Guides.  The issue?  The Green Guides’ trace amount test refers to both the “acknowledged trace contaminants” standard and the “background levels" standard, while the recent orders against Sherwin-Williams and PPG refer only to  "background levels."  But there’s a reason for that — and it’s apparent from the first clause in that section of the Green Guides:  “Depending on the context, . . . "

The Guides apply to a broad range of products where either “acknowledged trace contaminants” or “background levels” might apply.   But that’s not the case with paints and other architectural coatings.  The harm consumers associate with VOCs in things like paint is emissions after application — in other words, the impact on the ambient air.  The "background levels" standard is what matters because it lines up with consumer expectations about VOC-free claims for paint.  Therefore, the first prong of the trace amount test for VOC-free claims for paints and similar products is satisfied when the level of VOCs results in concentrations lower than background levels in the ambient air.

Is there an “acknowledged trace contaminant” for VOCs in paint?  Not that we’ve heard.  We’re aware of no scientific or regulatory body that has recognized a specific trace contaminant level of VOCs in paint. 

So what about a company that sells a paint that contains very small amounts of VOCs and wants to rely on the “trace amount” test from the Green Guides to make zero-VOC claims?  Among other things, they’ll need to show that the presence of VOCs in the paint doesn’t cause material harm that consumers typically associate with VOCs.  What’s that harm in this context?  At a minimum, consumers find both the environmental effect of VOCs and the health effects material in evaluating “free of” or “zero” VOC claims for paints.  So as stated in the definition for “trace amount of VOCs” in the Sherwin-Williams and PPG orders, the “material harm” prong specifically includes harm to the environment and to human health.

That's why the Enforcement Policy Statement makes clear that "If a marketer makes a VOC-free claim about an architectural coating that contains more than a 'trace level of VOCs,'  as defined by the Sherwin-Williams and PPG orders . . . and lacks substantiation for such claim, the Commission may take action under Section 5 of the FTC Act."

OK.  Chemistry class is over.  But if you work in this industry, you’ll definitely want to take a look at the latest from the FTC.