FTC Green Guides and ZeroVOC Claims
Federal Trade Commission
• FTC Act (1914)
– Grants FTC the authority to take action against
“unfair methods of competition…and unfair or
deceptive acts or practices in or affecting
commerce.”
• FTC’s authority to enforce FTC Act, but NOT:
– issue regulations
– make environmental policy or
– set standards
FTC’s Green Guides
• FTC’s current position on how consumers
interpret environmental marketing claims
with respect to the FTC Act (nonbinding)
• 1992 to 2012 Green Guides
• FTC has the authority to bring claims
• Scope:
– Labeling, advertising, promotional materials
and all forms of marketing
– Targeting consumer and B2B sales
FTC’s Green Guides
• Prohibit deceptive environmental claims or
marketing
– “A representation, omission, or practice is
deceptive if it is likely to mislead consumers
acting reasonably under the circumstances
and is material to consumers’ decisions.”
• Focus = how a reasonable consumer
would perceive and interpret the
claim
FTC’s Green Guides
• Must ensure all environmental marketing claims are:
– Truthful,
– Not misleading, and
– Supported by a reasonable basis.
• Must possess and rely on substantiation for all of its
environmental marketing claims
– Based on competent and reliable scientific evidence
• Be specific: claims should clearly specify what it refers to
• Qualifications must be:
– Clear,
– Prominent (located near to the claim), and
– Understandable.
FTC’s Green Guides
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General Environmental Benefit
Certifications & Seals of Approval
Non-toxic
Recyclable or Recycled Content
Renewable Materials (Bio-based)
Free of Claims (Zero-VOC)
Free of Claims (Zero-VOC Claims)
• It is deceptive to misrepresent that a
product is free-of “XXX”
– Must qualify claims; if necessary
• A truthful claim can still be deceptive if:
– The product has substances posing a similar
risk
– The substance has never been
associated with the product
Free of Claims (Zero-VOC Claims)
• Free of Claims may still be appropriate if:
– The substance is no more than a trace
amount
• FTC reviewed trace amounts after adding tint
– The presences of the substance will not
cause the harm typically associated with the
substance
– The substance has not been intentionally
added
Enforcement Policy Statement Regarding
VOC-Free Claims for Architectural Coatings
• Released in March 2013
– Response to consent agreements with 2 manufacturers
– Applies to entire industry
• Companies may not represent “that the VOC
level of a paint is ‘zero’ unless, after tinting, the
VOC level is zero grams per liter,
or
they possess and rely upon competent and
reliable scientific evidence that the paint
contains no more than a ‘trace level of
VOCs.’”
Zero-VOC Claims: Trace Levels
• “Trace level of VOCs”
– 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
– The presence of VOCs at that level does not
result in concentrations higher than would be
found at background levels in the
ambient air.
Zero-VOC Claims: Base vs.
Colorant
• Must consider all reasonably available colorants
A. Zero-VOC Base; After tinting, the VOC level is 0 g/l
– Must have substantiation on base and colorant
• Currently on clear how to test
B. Zero-VOC Base; after tinting, the VOC level is less
than 50 g/l
– Substantiation on base and qualification that claim only refers to the base & VOC
level may increase with tinting
C. Zero-VOC Base; after tinting, the VOC level is greater
than 50 g/l
– Substantiation on base and qualification that the claim only refers to the
base & VOC level may increase “significantly” or “up to [highest level
after tinting]” with tinting
• Taken from settlement agreements
Technical Issues with Guides
and Policy
• Multiple potential options for substantiation:
– Supplier representations / Formulation data
– EPA Method 24
– ASTM D6886
• Inconsistent with Architectural Coatings
Regulations
– Based on VOC content and exempt solvents
• Inherent uncertainty in analytical methods
• Definition of “trace level of VOCs”
– No VOCs in ambient air
ACA Advocacy
• Discussions with the membership between
2013-14
– White Paper (draft)
• Concerns raised a portion of the membership
– Disagreement on significance of the issue
– Disagreement with VOC content calculations
• Explored advocacy options, but ultimately ACA
could not achieve member consensus
– No further action approved by
Architectural Coatings Committee
Current Inquires
• Round 1: August 2015
– 6 members received inquires from FTC
– Focused on base and colorant VOC content
• Product labels; marketing materials; colorants; VOC content
levels; and “color mixing instructions”
• Round 2: October 2015
– 3 members received inquires from FTC
– Focused on base and colorant VOC content and
certifications
• Test methods and test results
• Who certified the product and how the evaluation was
conducted
Possible Results
• Ideal Outcome:
– FTC finds all members are compliant
• Outcome A:
– FTC finds multiple interpretations of the Zero-VOC policy
– FTC updates the Zero-VOC policy
• Outcome B:
– FTC determines some companies are compliant and some
companies are not compliant
– FTC does not update the Zero-VOC policy
• Outcome C:
– FTC states no current method to make Zero-VOC
claim
Next Steps / Discussion
• Current enforcement landscape:
– Individual and ambiguous enforcement
– Multiple interpretations on making Zero-VOC
claims
• Recommend ACA meet with FTC
– Educate FTC on VOC content calculations
– Assist in amending the Zero-VOC policy
– Understand FTC’s compliance rubric
• End selective enforcement
• Provide guidance to membership