The Sherwin-Williams Company; Analysis of Proposed Consent Order To Aid Public Comment, 66841-66843 [2012-27105]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 77, Number 216 (Wednesday, November 7, 2012)]
[Notices]
[Pages 66841-66843]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27105]


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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.

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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 at https://ftcpublic.commentworks.com/ftc/sherwinwilliamsconsent online or on 
paper, by following the instructions in the Request for Comment part of 
the SUPPLEMENTARY INFORMATION section below. Write ``Sherwin-Williams, 
File No. 112 3198'' on your comment and file your comment online at 
https://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 
following

[[Page 66842]]

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 October 25, 2012), on the World Wide Web, at https://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, at https://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.
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    \1\ 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), 16 CFR 4.9(c).
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    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/sherwinwilliamsconsent by following the instructions on the web-
based form. If this Notice appears at https://www.regulations.gov/#!home 
you 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 at https://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 November 26, 2012. You can find more 
information, including routine uses permitted by the Privacy Act, in 
the Commission's privacy policy, at https://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 its Dutch Boy Refresh paints, 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\
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    \2\ The 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.
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    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. It

[[Page 66843]]

defines ``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 all Dutch Boy Refresh ads with zero 
VOC claims and affix a sticker to existing Dutch Boy Refresh paint 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.
[FR Doc. 2012-27105 Filed 11-6-12; 8:45 am]
BILLING CODE 6750-01-P