The FTC’s recent settlements with three mattress companies send a message to all companies making “VOC Free” (volatile organic compounds) and similar environmental or “green” claims. These mattress settlements come just nine months after FTC settlements with two of the nation’s leading paint companies, The Sherwin-Williams Company and PPG Architectural Finishes for similar “VOC Free” marketing claims.
The FTC’s actions make clear it intends to enforce the requirement that companies have a “reasonable basis” to support such claims, and the lack of such a basis will invite FTC enforcement actions similar to those recently faced by Relief-Mart, Essentia Natural Memory Foam Company, and Ecobaby Organics. As part of their settlements with FTC, these three mattress companies recently agreed to no longer make the following types of claims without a reasonable basis to substantiate them:
- “VOC Free”
- "No Formaldehyde”
- “Chemical Free”
- “No Toxic Substances”
For products making environmental claims, the recent FTC action in this area warrants a review of marketing and advertising materials to ensure that any express or implied environmental claims are truthful, not misleading, and supported by a reasonable basis. According to FTC’s Green Guides, this applies to any claims found in “labeling, advertising, promotional materials, and all other forms of marketing in any medium, whether asserted directly or by implication, through words, symbols, logos, depictions, product brand names, or any other means.” The guidance goes on to state that all environmental claims found in these types of materials require what the FTC terms “competent and reliable scientific evidence” (defined further below) in order to possess the requisite “reasonable basis.”
Although there are other noteworthy details about each of the individual mattress settlements, a general takeaway from the FTC’s recent activity in this area should be a general awareness of the highly regulated nature of “green” and other environmental product claims. Simply looking at the Table of Contents of FTC’s Green Guides provides a glimpse into the high degree of caution companies must exercise for claims involving:
- General Environmental Benefits
- Carbon Offsets
- Certifications & Seals of Approval
- Compostable Claims
- Free-Of Claims
- Degradable Claims
- Non-Toxic Claims
- Ozone-Safe/Friendly Claims
- Recyclable Claims
- Recycled Content Claims
- Refillable Claims
- Renewable Energy Claims
- Renewable Materials Claims
- Source Reduction Claims
A general requirement discussed throughout the guidance for each of these types of environmental claims is the need for “competent and reliable scientific evidence” to substantiate and provide a reasonable basis for them. Although the specific approach varies depending on the types of claims made, FTC’s guidance states that this type of evidence consists of:
Tests, analyses, research, or studies that have been conducted and evaluated in an objective manner by qualified persons and are generally accepted in the profession to yield accurate and reliable results, and that are sufficient in quality and quantity based on standards generally accepted in the relevant scientific fields, when considered in light of the entire body of relevant and reliable scientific evidence, to substantiate that a representation is true.
This is not a low threshold. To prevent FTC scrutiny similar to that faced by the mattress and paint companies, serious and thoughtful consideration should be given to the ability to meet this threshold prior to making environmental claims.
Additional detail concerning each of the individual mattress settlements can be found in the FTC blog post about the agreements.