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Daily Rules, Proposed Rules, and Notices of the Federal Government

FEDERAL TRADE COMMISSION

[File No. 112 3198]

The Sherwin-Williams Company; Analysis of Proposed Consent Order To Aid Public Comment

AGENCY: Federal Trade Commission.
ACTION: Proposed consent agreement.
SUMMARY: The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices or unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft 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 November 26, 2012.
ADDRESSES: Interested parties may file a comment athttps://ftcpublic.commentworks.com/ftc/sherwinwilliamsconsentonline or on paper, by following the instructions in the Request for Comment part of theSUPPLEMENTARY INFORMATIONsection below. Write "Sherwin-Williams, File No. 112 3198" on your comment and file your comment online athttps://ftcpublic.commentworks.com/ftc/sherwinwilliamsconsent,by following the instructions on the web-based form. If you prefer to file your comment on paper, mail or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex D), 600 Pennsylvania Avenue NW., Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT: Laura Kim (202-326-3734), FTC, 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 followingAnalysis 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 October 25, 2012), on the World Wide Web, athttp://www.ftc.gov/os/actions.shtm.A paper copy can be obtained from the FTC Public Reference Room, Room 130-H, 600 Pennsylvania Avenue NW., Washington, DC 20580, either in person or by calling (202) 326-2222.

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before November 26, 2012. Write “Sherwin-Williams, File No. 112 3198” 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, athttp://www.ftc.gov/os/publiccomments.shtm.As a matter of discretion, the Commission tries to remove individuals' home contact information from comments before placing them on the Commission Web site.

Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone'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, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which * * * is privileged or confidential,” as discussed in 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). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).1 Your comment will be kept confidential only if the FTC General Counsel, in his or her sole discretion, grants your request in accordance with the law and the public interest.

1In 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.SeeFTC Rule 4.9(c), 16 CFR 4.9(c).

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 athttps://ftcpublic.commentworks.com/ftc/sherwinwilliamsconsentby following the instructions on the web-based form. If this Notice appears athttp://www.regulations.gov/#!homeyou also may file a comment through that Web site.

If you file your comment on paper, write “Sherwin-Williams, File No. 112 3198” on your comment and on the envelope, and mail or deliver it to the following address: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex D), 600 Pennsylvania Avenue NW., Washington, DC 20580. If possible, submit your paper comment to the Commission by courier or overnight service.

Visit the Commission Web site athttp://www.ftc.govto 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 November 26, 2012. You can find more information, including routine uses permitted by the Privacy Act, in the Commission's privacy policy, athttp://www.ftc.gov/ftc/privacy.htm.

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 The Sherwin-Williams Company (“Sherwin-Williams”).

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 decide whether it should withdraw from the agreement or make final the agreement's proposed order.

This matter involves Sherwin-Williams's marketing and sale of “zero VOC” paints. According to the FTC complaint, Sherwin-Williams represented that itsDutch Boy Refreshpaints, including paints with color added, contain zero VOCs. But the complaint alleges that, in numerous instances, the paint does not contain zero VOCs after the addition of color. It also alleges that Sherwin-Williams did not possess and rely upon a reasonable basis substantiating these representations when it made them. Finally, it alleges that, by providing independent distributors and retailers with promotional materials making the above representations, Sherwin-Williams provided these third parties with the means and instrumentalities to engage in deceptive practices. Thus, the complaint alleges that Sherwin-Williams engaged in deceptive practices in violation of Section 5(a) of the FTC Act.

The proposed order contains three provisions designed to prevent Sherwin-Williams from engaging in similar acts and practices in the future. Part I addresses the marketing of zero VOC paints. It prohibits Sherwin-Williams from claiming that its paints (including paints manufactured under its Sherwin-Williams, Dutch Boy, and Krylon brands) contain “zero VOCs” unless: (1) After tinting, the VOC level is zero grams per liter (“g/L”) or Sherwin-Williams possesses competent and reliable scientific evidence that the paint contains no more than a trace level of VOCs; or (2) Sherwin-Williams clearly and prominently discloses that the claim applies only to the base paint and that, depending on the color choice, the VOC level may increase. In situations where a paint's post-tint VOC level is 50 g/L or more, the order requires Sherwin-Williams to disclose that the VOC level increases “significantly” or “up to [the highest possible VOC level after tinting].”2

2The order does not require Sherwin-Williams to characterize an increase of less than 50 g/L as “significant” because paints with this level of VOCs are considered by air quality regulators and environmental certification groups to be low in VOCs.

Part II addresses VOC and environmental benefit or attribute claims made about paints and other architectural coatings. It prohibits such representations unless the representation is true, not misleading, and substantiated by competent and reliable scientific evidence.

Part III prohibits Sherwin-Williams from providing to others the means and instrumentalities with which to make any claim prohibited by Part I or II. Itdefines “means and instrumentalities” as any information, including any advertising, labeling, or promotional, sales training, or purported substantiation materials, for use by trade customers in their marketing of any such product or service.

Part IV requires Sherwin-Williams to send a letter to its retailers, requiring them to remove allDutch Boy Refreshads with zero VOC claims and affix a sticker to existingDutch Boy Refreshpaint can labels.

Finally, Parts V though VIII require Sherwin-Williams to: Keep copies of advertisements and materials relied upon in disseminating any representation covered by the order; provide copies of the order to certain personnel, agents, and representatives having supervisory responsibilities with respect to the subject matter of the order; notify the Commission of changes in its structure that might affect compliance obligations under the order; and file a compliance report with the Commission and respond to other requests from FTC staff. Part IX provides that the order will terminate after twenty (20) years, with certain exceptions.

The purpose of this analysis is to facilitate public comment on the proposed order. It is not intended to constitute an official interpretation of the complaint or the proposed order, or to modify the proposed order's terms in any way.

By direction of the Commission.

Donald S. Clark, Secretary.