[Federal Register Volume 77, Number 216 (Wednesday, November 7, 2012)]
[Notices]
[Pages 66841-66843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27105]
=======================================================================
-----------------------------------------------------------------------
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 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 http://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 http://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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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 http://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 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 November 26, 2012. You can find more
information, including routine uses permitted by the Privacy Act, in
the Commission's privacy policy, at http://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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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