Environmental and Advertising Advisory - Marketing Products as "VOC-Free" in Light of the FTC's Enforcement Policy Statement

The Federal Trade Commission's ("FTC" or "Commission") recent enforcement policy statement on the use of "zero" or "free of" claims for volatile organic compounds ("VOCs") in architectural coatings requires a deeper analysis of a complex intersection of fact, science, and law. Unfortunately, the Commission erred in setting out its policy without providing stakeholders with an opportunity to comment on, and refine the policy from the standpoint of environmental regulatory requirements. The lapse is particularly troublesome since VOCs have long been subject to federal and state requirements governing emissions from consumer and industrial products, as well as in occupational settings, a reality that is central to affected companies' interest in making "VOC-free" claims. In particular, the Commission's policy overlooks a critical category of compounds that typically are not counted as VOCs, overlooks other regulatory requirements, and imposes a definition of trace VOCs that is at best confusing, and may be infeasible to implement.