FTC Approves Final Consent Orders Against Four Paint Companies Regarding Emission- and VOC-Free Claims

The Federal Trade Commission (FTC) approved final consent orders against four paint companies — Benjamin Moore & Co., Inc., ICP Construction Inc., YOLO Colorhouse, LLC, and Imperial Paints, LLC — that allegedly misled consumers by claiming their products were free of emissions and volatile organic compounds (VOCs). To clarify to industry that these orders represent the Commission’s current view, the FTC has rescinded its 2013 Enforcement Policy Statement Regarding VOC-Free Claims for Architectural Coatings.

According to the FTC’s complaints, the companies claimed their paints would not emit VOCs and other chemicals, including during and immediately after application. Some promotions also made explicit safety claims regarding babies, children, pregnant women, and other sensitive populations. However, the FTC alleged the companies had no evidence to support these claims.

The final orders settling the FTC’s claims bar the companies from making unqualified emission-free and VOC-free claims unless: 1) at all times during and after application, both content in and emissions from their paints are actually zero, or 2) emissions are at “trace” levels, as defined in the orders. The new “trace level test” outlined within the orders is as follows:

  1.  A VOC has not been intentionally added to the covered product;
  2. Emission of the covered product does not cause material harm that consumers typically associate with emission, including harm to the environment or human health; and
  3. Emission of the covered product does not result in more than harmless concentrations of any compound higher than would be found under normal conditions in the typical residential home without interior architectural coating.

The final orders also prohibit the companies from making other unsubstantiated health and environmental claims and require Benjamin Moore and ICP Construction to disclose that seals appearing in their promotional materials are their own designations.

The final consent orders can be found here.

EPA Adopts “Back to Basics” Process for NAAQS Review

On May 9, EPA Administrator Pruitt released a memorandum to Assistant Administrators titled “Back to Basics Process for Reviewing National Ambient Air Quality Standards” (NAAQS). Key provisions include:

1. Meeting statutory deadlines. The Administrator has ordered completion of the pending review of the ozone NAAQS by October 2020 and of the pending PM NAAQS review by December 2020. The memorandum directs the agency to ensure that the Clean Air Scientific Advisory Committee (CASAC) will convene panels with the necessary expertise in a manner consistent with the 2017 directive on federal advisory committees. This is part of a larger effort to ensure that EPA completes its NAAQS reviews within the statutory 5-year period, a requirement that the agency seldom has met, often spawning litigation in the past.

2. Addressing all CAA NAAQS review provisions. This provision focuses on implementation of the Clean Air Act’s (CAA) requirements for CASAC advice in two areas that have historically been given short shrift: (1) adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and maintenance of a standard (presumably including the adverse health effects of unemployment resulting from a standard); and (2) consideration of background pollution, attainability and technological feasibility. Questions on these issues will now be presented explicitly to CASAC in its official charge documents. The memorandum notes that the Supreme Court has held that EPA cannot consider implementation costs in establishing NAAQS, but states that the Court also recognized that CASAC’s “advice concerning certain aspects of ‘adverse public health … effects’ from various attainment strategies is unquestionably pertinent” to the NAAQS rulemaking record and relevant to the standard-setting process. The Memorandum indicates that EPA will consider implementation costs in the policy judgment it makes with respect to the standard’s margin of safety, and also in developing implementation rules. It also directs CASAC to provide advice on certain agency actions where the Committee historically has been silent, including review of the Regulatory Impact Analysis for a proposed standard and any resulting implementation rules.

3. Streamlining and standardizing the process. This section requires a number of changes to the NAAQS review process to speed it up and make the various documents involved more useful.

4. Clearly differentiating between science and policy considerations. This provision requires the agency to establish a clear distinction between the purely scientific findings of a NAAQS Integrated Science Assessment (ISA) and the wider range of policy concerns that the Administrator must consider in making judgments about requisite standards and margins of safety. It also directs EPA to request CASAC to distinguish clearly between its scientific and policy advice.

5. Issuing timely implementation of regulations and guidance. When a NAAQS is revised, EPA is directed to issue concurrent implementation regulations and guidance as necessary, and also to issue technical information to assist states in developing approvable plans and demonstrating how any new NAAQS is to be attained and maintained. The rules and guidance should provide information relevant to the submission and consideration of state implementation plans and preconstruction permit applications, and may address potential tools for regulatory relief to address background concentrations and sources of pollution outside of the control of the state.

These new principles will be applied to the pending reviews of the ozone and PM NAAQS, which are to be completed before the 2020 elections, and likely will spawn litigation over both of EPA’s final decisions in reviewing these standards.

New REACH Registration Requirements for Nanomaterials

On April 26, 2018, EU Member States voted to implement new REACH registration requirements for nanomaterials.  The European Commission announced that the draft regulation will be reviewed by Parliament and Council for three months before being adopted.  The requirement to provide more information on nanomaterials under REACH (Regulation No. 1907/2006) would apply from Jan. 1, 2020.

The European Commission reported that the proposed amendments will significantly clarify REACH registration requirements with regard to nanomaterials. According to the Commission, REACH always applied to nanomaterials but did not contain specific provisions for them.  The Commission explained that this meant companies often did not know how to register substances in nanoform.  It noted that the specific requirements will address the current knowledge gap on which substances registered under REACH are placed on the market as nanomaterials and in which quantities.

Under the new requirements, manufacturers and importers will be obligated to assess and document in the chemical safety report that the risks, arising from the identified uses of the substance with nanoforms they manufacture or import, are adequately controlled. To ensure clarity, the chemical safety report should describe whether and which different nanoforms are covered by the assessment and how the information is compiled in the report.  The proposed regulation can be accessed here.