Substantiation goes for all products, including paint

Posted by Clyde Hutchins | Jul 12, 2017 | 0 Comments

I have written about the FTC's substantiation requirements with respect to supplements. It is not surprising that the FTC has taken action against supplement makers to require that their claims are valid. The nature of supplements lends itself to exaggerated and false claims about their effectiveness. However, the substantiation requirements apply to other types of products too as seen by the FTC's recent action against several paint companies.

The FTC resolved investigations against Benjamin Moore & Co., Inc., Imperial Paints, LLC, YOLO Colorhouse, LLC, and ICP Construction Inc., over claims that the companies made unsubstantiated claims that their paints were free of emissions or contained no volatile organic compounds. The FTC also alleged that the companies facilitated deception by retailers. Additionally, the FTC claimed that two of the companies represented that their paint products were awarded environmental seals, yet failed to disclose to consumers that they had established the seals and awarded them to their own products.

Each of the proposed consent orders settling the charges against Benjamin Moore & Co., Inc., Imperial Paints, LLC, YOLO Colorhouse, LLC, and ICP Construction Inc. contains four provisions designed to ensure the companies do not engage in similar conduct in the future.

To resolve the case, the FTC prohibited the companies from making unqualified emission and volatile organic compound free claims unless they are actually zero or at trace levels. The FTC also required competent and reliable scientific evidence to back up any claims made about emissions and environmental or health benefits of the paint.

In regard to third parties, the FTC required that the paint companies advise their distributors to stop using the existing marketing materials and to provide materials to correct misleading claims on existing stock. The companies are also barred from providing the means for third parties to make unsubstantiated or misleading statements about the paint products.

As for the two companies that created their own seals, the FTC orders prohibit them from misrepresenting third-party certifications and failing to adequately disclose a material connection with an endorser.

The FTC's action against the paint companies highlights the FTC's habit of exploring false, deceptive and unfair activity in a certain industry, service or product and then expanding upon that to comprehensively address similar problems throughout that area.

Companies advertising the environmental or health benefits of their products must ensure that they meet the FTC's substantiation requirements. It is very easy to make assumptions or exceed the conclusions found in studies and other scientific evidence when developing advertising for the product. If you are in need of assistance in meeting the substantiation claims, please feel free to contact Harmony Law for assistance.

About the Author

Clyde Hutchins

Clyde Hutchins is the founder of Harmony Law. Mr. Hutchins started his career as a lawyer in Cheyenne, Wyoming. First gaining experience as a law clerk for the district court judges, Mr. Hutchins entered private practice with a Cheyenne firm focused on civil litigation, business law and some general practice law. Later, Mr. Hutchins went to Alaska, where he was the chief litigator for a firm that engaged in bond law, corporate law, securities law, and the broad reach of municipal law. Mr. Hutchins returned to Cheyenne to represent the State of Wyoming in the national tobacco arbitration. While in that position, he developed the consumer protection unit for the Wyoming Attorney General's Office. He led over 120 investigations and enforcement actions in Wyoming and worked on numerous joint cases with the Federal Trade Commission and other states, including Colorado. Mr. Hutchins relocated to Colorado in 2016 and founded Harmony Law. Mr. Hutchins has established Harmony Law in three principal areas of law. First, it is a general practice firm in the areas of business law, estate planning and family law. Secondly, it is a civil litigation firm, practicing law in state and federal courts throughout Wyoming and Colorado. Finally, it is one of the few firms in Wyoming or Colorado that focuses on consumer protection law.


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