If you or your clients make environmental marketing claims, don’t sleep on three actions the FTC just announced against companies that sell mattresses. What's more, the pleadings in one case offer insights into a course of conduct advertisers should avoid in the use of seals and certifications.
According the FTC’s lawsuit against Relief-Mart, based in Westlake Village, California, the company advertised its Biogreen memory foam mattresses without having its claims tucked in. Relief-Mart, which markets through its tempflow.com site, said the products don’t contain volatile organic compounds (VOCs), have no VOC off-gassing, and don’t have the smell consumers often associate with memory foam. One aroma the FTC detected from Relief-Mart’s representations was the whiff of deception, which is why the complaint charged that the company didn’t have a reasonable basis for its claims.
A second lawsuit challenged statements in ads by Quebec-based Essentia Natural Memory Foam Company, which has retail stores in six U.S. cities. The FTC charged that Essentia didn’t have appropriate proof to back up claims that its mattresses are VOC-free, have “[n]o chemical off-gassing or odor,” and — unlike other memory foam mattresses that “can emit up to 61 chemicals” — are “free from all those harmful VOCs.” In addition, the complaint disputes Essentia’s claims that its memory foam mattresses are chemical-free, contain no formaldehyde, don’t emit chemical fumes and odors, and are “made with 100% natural materials.” The FTC also challenged the truthfulness of Essentia’s assurance that testing confirms that its memory foam mattresses are VOC- and formaldehyde-free.
(An aside about “smell” claims: The FTC doesn’t normally challenge subjective representations such as smell. What’s different here is that consumers acting reasonably under the circumstances are likely to interpret a claim that a mattress doesn’t have that memory foam smell to mean that it’s VOC-free.)
In a third action, the FTC alleged that San Diego-based Ecobaby Organics short-sheeted the truth in how it marketed its latex mattresses. Through its purerest.com site, Ecobaby touted its mattresses as “chemical free,” with no formaldehyde, toluene, benzene, VOCs, or toxic substances. The company also said its products contained fewer contaminants and chemicals than competitors’ memory foam or latex mattresses and that it had sound testing to back up its chemical-, formaldehyde-, and VOC-free claims. Not so, said the FTC, which alleged that Ecobaby didn’t have appropriate testing to support those statements.
What about the certification angle? Ecobaby’s promotional materials prominently featured the seal of NAOMI, the National Association of Organic Mattress Industry. The FTC says the ads conveyed to consumers that NAOMI was an independent certifying organization with appropriate expertise that grants its seal based on objective standards. The truth, says the FTC, is that NAOMI is run by Ecobaby and is really an alter ego of the company. Thus, the company awarded its own seal to its own products without applying objective standards, a practice that (surprise, surprise) ran afoul of Section 5.
Proposed settlements with the three companies should put misleading representations to rest. You’ll want to read the orders for the details, but savvy green marketers will pay close attention to provisions addressing VOC-free claims. The orders prohibit the companies from making VOC-free claims unless the emission level is zero micrograms per cubic meter or if they have competent and reliable scientific evidence that the products in question contain no more than a “trace level” of VOCs. The “trace level” standard comes from the FTC's Green Guides’ guidance on making “free of” claims. As the Green Guides explain, companies meet the “trace level” test if:
- The level of the ingredient is less than what would be found as a background level in the ambient air;
- The presence of the ingredient doesn’t cause the harm consumers typically associate with it, including harm to the environment or health; and
- The ingredient hasn’t been intentionally added to the product.
The orders also bar a host of unsubstantiated environmental benefit or attribute claims and prohibit certain health claims without appropriate scientific evidence.
In addition, the settlements address particular forms of deception challenged in the individual complaints. For example, the Essentia and Ecobaby settlements ban claims that products covered by the orders are “free of chemicals” and prohibit misrepresentations about tests, studies or research. The Essentia order bars unsubstantiated “natural” claims. And under the Ecobaby settlement, the company can’t make “non-toxic” claims unless it has scientific evidence to back them up. Addressing the deceptve use of the NAOMI seal, the Ecobaby order puts a provision in place to end misrepresentations about certifications.
You have until August 26, 2013, to file an online comment about the proposed Relief-Mart, Essentia or Ecobaby Organics settlements. Today’s cases also offer a timely reminder to take a fresh look at the FTC’s revised Green Guides if you haven’t reviewed them recently.
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Published Jul 30, 2013 5pm EDT / 2pm PDT / 10pm BST / 11pm CEST