82 FR 32818 - Benjamin Moore & Co., Inc.; Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

Federal Register Volume 82, Issue 136 (July 18, 2017)

The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices. The attached Analysis to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order-- embodied in the consent agreement--that would settle these allegations.

[Federal Register Volume 82, Number 136 (Tuesday, July 18, 2017)]
[Notices]
[Pages 32818-32820]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-14972]


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FEDERAL TRADE COMMISSION

[File No. 162 3079]


Benjamin Moore & Co., Inc.; Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

[[Page 32819]]


ACTION: Proposed consent agreement.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices. The attached Analysis to Aid Public Comment describes both 
the allegations in the complaint and the terms of the consent order--
embodied in the consent agreement--that would settle these allegations.

DATES: Comments must be received on or before August 10, 2017.

ADDRESSES: Interested parties may file a comment online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write: ``In the Matter of 
Benjamin Moore & Co., Inc., File No. 1623079'' on your comment, and 
file your comment online at https://ftcpublic.commentworks.com/ftc/benjaminmooreconsent by following the instructions on the web-based 
form. If you prefer to file your comment on paper, write ``In the 
Matter of Benjamin Moore & Co., Inc., File No. 1623079'' on your 
comment and on the envelope, and mail your comment to the following 
address: Federal Trade Commission, Office of the Secretary, 600 
Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, 
or deliver your comment to the following address: Federal Trade 
Commission, Office of the Secretary, Constitution Center, 400 7th 
Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Katherine E. Johnson (202-326-2185), 
Bureau of Consumer Protection, 600 Pennsylvania Avenue NW., Washington, 
DC 20580.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, 
notice is hereby given that the above-captioned consent agreement 
containing a consent order to cease and desist, having been filed with 
and accepted, subject to final approval, by the Commission, has been 
placed on the public record for a period of thirty (30) days. The 
following Analysis to Aid Public Comment describes the terms of the 
consent agreement, and the allegations in the complaint. An electronic 
copy of the full text of the consent agreement package can be obtained 
from the FTC Home Page (for July 11, 2017), on the World Wide Web, at 
https://www.ftc.gov/news-events/commission-actions.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before August 10, 2017. 
Write ``In the Matter of Benjamin Moore & Co., Inc., File No. 1623079'' 
on your comment. Your comment--including your name and your state--will 
be placed on the public record of this proceeding, including, to the 
extent practicable, on the public Commission Web site, at https://www.ftc.gov/policy/public-comments.
    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/benjaminmooreconsent by following the instructions on the web-based 
form. If this Notice appears at http://www.regulations.gov/#!home, you 
also may file a comment through that Web site.
    If you prefer to file your comment on paper, write ``In the Matter 
of Benjamin Moore & Co., Inc., File No. 1623079'' on your comment and 
on the envelope, and mail your comment to the following address: 
Federal Trade Commission, Office of the Secretary, 600 Pennsylvania 
Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, or deliver 
your comment to the following address: Federal Trade Commission, Office 
of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, 
Suite 5610 (Annex D), Washington, DC. 20024. If possible, submit your 
paper comment to the Commission by courier or overnight service.
    Because your comment will be placed on the publicly accessible FTC 
Web site at https://www.ftc.gov, you are solely responsible for making 
sure that your comment does not include any sensitive or confidential 
information. In particular, your comment should not include any 
sensitive personal information, such as your or anyone else's Social 
Security number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. You are also 
solely responsible for making sure that your comment does not include 
any sensitive health information, such as medical records or other 
individually identifiable health information. In addition, your comment 
should not include any ``trade secret or any commercial or financial 
information which . . . is privileged or confidential''--as provided by 
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 
16 CFR 4.10(a)(2)--including in particular competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    Comments containing material for which confidential treatment is 
requested must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with FTC Rule 4.9(c). In particular, 
the written request for confidential treatment that accompanies the 
comment must include the factual and legal basis for the request, and 
must identify the specific portions of the comment to be withheld from 
the public record. See FTC Rule 4.9(c). Your comment will be kept 
confidential only if the General Counsel grants your request in 
accordance with the law and the public interest. Once your comment has 
been posted on the public FTC Web site--as legally required by FTC Rule 
4.9(b)--we cannot redact or remove your comment from the FTC Web site, 
unless you submit a confidentiality request that meets the requirements 
for such treatment under FTC Rule 4.9(c), and the General Counsel 
grants that request.
    Visit the FTC Web site at http://www.ftc.gov to read this Notice 
and the news release describing it. The FTC Act and other laws that the 
Commission administers permit the collection of public comments to 
consider and use in this proceeding, as appropriate. The Commission 
will consider all timely and responsive public comments that it 
receives on or before August 10, 2017. For information on the 
Commission's privacy policy, including routine uses permitted by the 
Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

Analysis of Agreement Containing Consent Order To Aid Public Comment

    The Federal Trade Commission (``FTC'' or ``Commission'') has 
accepted, subject to final approval, an agreement containing a consent 
order from Benjamin Moore & Co., Inc. (``respondent'').
    The proposed consent order has been placed on the public record for 
thirty (30) days for receipt of comments by interested persons. 
Comments received during this period will become part of the public 
record. After thirty (30) days, the Commission will again review the 
agreement and the comments received, and will decide whether it should 
withdraw from the agreement or make final the agreement's proposed 
order.

[[Page 32820]]

    This matter involves respondent's marketing, sale, and distribution 
of purportedly ``emission-free'' paints. Emission is any compound 
emitted from paint during application or thereafter and includes 
volatile organic compounds (or VOCs). According to the FTC complaint, 
respondent made unsubstantiated representations that Natura paints: (1) 
Are emission-free; (2) are emission-free during or immediately after 
painting; (3) will not emit any chemical or substance, including VOCs, 
that causes material harm to consumers, including sensitive populations 
such as babies and allergy and asthma sufferers; and (4) will not emit 
any chemical or substance, including VOCs, during or immediately after 
painting, that causes material harm to consumers, including sensitive 
populations such as babies and allergy and asthma sufferers. The FTC 
also alleges that respondent used its Green Promise seal without 
adequately disclosing that respondent awarded the seal to its own 
product. Consumers likely interpret such seals as a claim that an 
independent third party certified the product. The FTC further alleges 
that respondent provided independent retailers with promotional 
materials containing the same claims it made to consumers. Thus, the 
complaint alleges that respondent engaged in deceptive practices in 
violation of Section 5(a) of the FTC Act.
    The proposed consent order contains five provisions designed to 
prevent respondent from engaging in similar acts and practices in the 
future. Part I prohibits emission-free and VOC-free claims unless both 
content and emission are actually zero or at trace levels. The orders 
define ``emission'' to include all emissions (not just VOCs that cause 
smog). This definition reflects the Commission's Enforcement Policy 
Statement and consumer expectations: Consumers are likely concerned 
about the potential health effects from exposure to chemical emissions 
found in indoor air, not just VOCs that affect outdoor air quality. The 
order defines ``trace level of emission'' to mean (1) no intentionally 
added VOC, (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. Part 
II prohibits misleading representations regarding emission, VOC levels, 
odor, and any general environmental and health benefit of paints. The 
order requires competent and reliable scientific evidence to 
substantiate these representations. Parts IV and V prohibit respondent 
from misrepresenting third-party certifications and failing to 
adequately disclose a material connection. Part VI prohibits respondent 
from providing third parties with the means and instrumentalities to 
make false, unsubstantiated, or otherwise misleading representations of 
material fact regarding paints, including any representation prohibited 
by Parts I, II, IV or V.
    To correct allegedly existing unsubstantiated zero emission and VOC 
claims and deceptive certification claims, Part III requires the 
respondent to send letters to its dealers and distributors, instructing 
them to place placards next to paint cans and at point of sale.
    Parts VII through XI are reporting and compliance provisions. Part 
VII mandates that respondent acknowledge receipt of the order, 
distribute the order to certain employees and agents, and secure 
acknowledgments from recipients of the order. Part VIII requires that 
respondent submit compliance reports to the FTC within sixty (60) days 
of the order's issuance and submit additional reports when certain 
events occur. Part IX requires that respondent must create and retain 
certain records for five (5) years. Part X provides for the FTC's 
continued compliance monitoring of respondent's activity during the 
order's effective dates. Part XI is a provision ``sunsetting'' the 
order after twenty (20) years, with certain exceptions.
    If the Commission finalizes the agreement's proposed order, it 
plans to propose harmonizing with this order the consent orders issued 
in the PPG Architectural Finishes, Inc. (Docket No. C-4385) and The 
Sherwin-Williams Company (Docket No. C-4386) matters. Specifically, the 
Commission plans to issue orders to show cause why those matters should 
not be modified pursuant to Section 3.72(b) of the Commission Rules of 
Practice, 16 CFR 3.72(b).
    The purpose of the analysis is to aid public comment on the 
proposed order. It is not intended to constitute an official 
interpretation of the proposed order or to modify its terms in any way.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2017-14972 Filed 7-17-17; 8:45 am]
 BILLING CODE 6750-01-P