NAD Knocks HARMONY No-VOC Claims

Posted by | January 24, 2011 | General | No Comments

As I discussed in my December 13, 2010 post, The National Advertising Division (NAD) of the Council of Better Business Bureaus offers a streamlined, self-regulatory mechanism for remedying false advertising claims made in nationally distributed advertisements.  As NAD issues its opinions, I will report on some of those that concern the LOHAS community.

On January 18, 2011, NAD recommended that Sherwin-Williams modify its no-VOC claims for its HARMONY brand paints, after a challenge by paint manufacturer Benjamin Moore.  I have a personal interest in this case because we chose HARMONY no-VOC paint to re-paint our house after we had a flood in 2009.  The EPA defines VOCs as:

[framed_box] . . . any compound of carbon, excluding carbon monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate, which participates in atmospheric photochemical reactions . . . organic chemical compounds whose composition makes it possible for them to evaporate under normal indoor atmospheric conditions of temperature and pressure.[/framed_box]

Benjamin Moore challenged Sherwin-Williams’ use of these express claims:

No-VOC formula

Zero-VOC formula and

Formulated without silica and without VOCs for better indoor air quality

It also challenged the implied claim that the full line of Sherwin-Williams paints contain no VOCs.

Both parties agreed that no-VOC or Zero-VOC means that the paint has less than 5.0 grams/liter (g/L) VOC.

The press release issued by NAD states that it:

[framed_box] . . . reviewed express and implied claims made on Sherwin-Williams’ website and in its print advertising.  NAD considered the advertisers representation that while certain colors in its HARMONY line would exceed the 5.0 (g/L) VOC threshold when mixed with conventional colorants, the majority would yield less than 5.0 (g/L).  NAD also reviewed the challenger’s test results (performed by CalPoly on behalf of Benjamin Moore), which revealed that certain colors of the HARMONY paint brand had VOC levels of 42 to 112 after being mixed with conventional colorants.  NAD also took into consideration the advertiser’s assertion that because the majority of its HARMONY brand paints fall below 5.0 (g/L) its no-VOC claims are substantiated as to the whole line of HARMONY paint products. [/framed_box]

NAD first determined that Sherwin-Williams’ no-VOC and zero-VOC claims apply to its whole line of HARMONY brand paints.  It then recommended that these claims be discontinued or modified to make clear that the addition of conventional colorants to the HARMONY paint line may result in higher VOCs for some colors.

The NAD press releases states that Sherwin-Williams indicated it would take the NAD’s findings into consideration in future advertising, although the Sherwin-Williams website continues to use the zero-VOC language, as does its HARMONY product page.  NAD may refer cases to the FTC if its recommendations are not heeded, so we will have to wait and see what happens in this case.

BrandGeek BrandBite: Substantiation, Substantiation, Substantiation!  When engaging in national advertising (including via websites), green claims must make clear to which aspect of a product line or business they apply.  Claims must be substantiated by evidence, which companies should be prepared to provide in the event that it is sought by consumers or competitors.  Failure to substantiate one’s green claims may result in a NAD or FTC proceeding, or worse yet, false advertising litigation.

About Lara

Lara Pearson is a trademark attorney with Exemplar, where she also serves as the firm's Sustainability Steward. Lara's legal practice focuses on trademark and copyright law, including: intellectual property audits; trademark search & clearance; trademark and copyright registration & maintenance; intellectual property transfers; transactional work; and dispute resolution, including litigation when necessary. Lara primarily represents other social enterprises -- those leveraging their businesses and brands as catalysts for positive social and environmental change. Such businesses engage in CSR (Corporate Social Responsibility) to have a positive "triple bottom line" of people, planet and profit. As Exemplar's Sustainability Steward, Lara works with others in her law firm to measure and reduce the firm's carbon emissions and encourage engagement in social responsibility initiatives, including pro bono legal work and volunteering. Lara is a proud member of the Social Venture Network. Brand Geek is a member of 1% for the Planet and a Certified B Corporation, whose Incline Village office is certified under the regional Keep the Sierra Green program. Exemplar Companies is the most innovative professional services firm in the New Economy. Our unique, diversified expertise spans the disciplines of corporate law, business advisory, and capital/investment banking to better meet the needs of our high-potential customers. We have assembled a comprehensive suite of service to meet the complex issues facing companies in today’s challenging business environment. Our unique, holistic approach ensures the growth and success – and greatly increases the competitive advantage - of our customers. The Exemplar team is comprised of knowledgeable, highly skilled experts in a wide range of industries and disciplines. They work closely with our customers to provide trusted advice, incomparable support, expert guidance and the ultimate competitive advantage as they accelerate their businesses and position themselves to transform industries.

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