Green marketing presents an enormously valuable strategy for increasing brand value – cutting across all sectors. And the new emphasis on building materials and product makeup in LEED v4 will greatly favor environmentally conscious brands and businesses, far beyond LEED’s influence on the real estate industry. But the legal implications for green marketing claims call for caution.

The Federal Trade Commission’s Green Guides set forth the Commission’s current views on environmental marketing to help business avoid making unfair or deceptive claims.

With regard to “free-of” claims, one of a host of terms identified in the Green Guides, as revised in 2012, the FTC says, “depending on the context, a free-of or does-not-contain claim is appropriate even for a product, package, or service that contains or uses a trace amount of a substance …”

The FTC recently analyzed the trace amount test in the context of zero-VOC claims for architectural coatings (i.e., paint). Earlier this year, the Commission issued orders resolving allegations that The Sherwin-Williams Company and PPG Architectural Finishes, Inc. had deceptively advertised their paint products as “zero VOC.”

The orders prohibit the companies from representing that the VOC level of a paint is “zero” unless, after tinting, the VOC level is zero grams per liter, or they possess and rely upon competent and reliable scientific evidence that the paint contains no more than a “trace level of VOCs.”

The orders include a definition of “trace level of VOCs” derived from 16 C.F.R. § 260.9(c) and adapted specifically to address VOC-free claims for architectural coatings such as paint. The orders state that “trace level of VOCs” means: (a) VOCs have not been intentionally added to the product; (b) the presence of VOCs at that level does not cause material harm that consumers typically associate with VOCs, including but not limited to, harm to the environment or human health; and (c) the presence of VOCs at that level does not result in VOC-free marketing claims include, but are not limited to, “zero VOCs,” “0 VOCs,” “no VOCs,” and “free of VOCs.”

Beyond the language in the Green Guides, based on that enforcement experience, the FTC found it in the public interest to articulate the tailored definition of “trace level of VOCs” to all VOC-free claims for architectural coatings.  If a building owner or other marketer makes a VOC-free claim about an architectural coating that contains more than a “trace level of VOCs,” as defined by the Sherwin-Williams and PPG orders and discussed above, or lacks substantiation for such claim, the FTC or some third party may take action.

The FTC treatment of paint is instructive and a very good example of why the legal implications for green marketing claims call for caution.

The Green Guides and much more will be the subject of my educational session at Greenbuild International Conference and Expo in Philadelphia on Friday, November 22nd at 8:00 a.m.  Register today for “G09: Marketing Green Building: A Competitive Advantage Without Greenwash”.