While the proposed consent orders do not address whether any penalties are associated with the settlements, the FTC is seeking injunctive relief.  Specifically, the proposed consent orders prohibit the companies from claiming that their paints contain “zero VOCs,” unless such a claim is supported by competent and reliable scientific evidence that the paint contains no more than trace levels of VOCs.

Moving Forward

The Green Guides provide general guidance to businesses and marketers on how to avoid making environmental claims that could run afoul of the FTC Act’s prohibition against unfair or deceptive acts or practices. Each business and marketer must analyze the statements and assertions made with respect to its products to ascertain whether the representation could be seen as crossing the line. How is this done? First, be sure any claim made by the business, environmental or otherwise, can be substantiated in the manner required by the FTC. Next, ensure that all internal review processes (operations, sales and legal) understand the need for legitimate substantiation of any assertion made with respect to renewable energy or claim of carbon offset. If any claim is ambiguous or unclear without the disclosure of certain qualifications, conditions or caveats, be sure such disclosures are included in the marketing materials, and are also clearly and prominently displayed in close proximity to the claim you are qualifying.

Michael Weller is an environmental and energy attorney in the Environmental Strategies Group at Bracewell & Giuliani LLP. Joe Tirone is a partner in the firm’s energy practice, focusing on energy project and infrastructure development, mergers and acquisitions, and project finance.