162 3079 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Maureen K. Ohlhausen, Acting Chairman 

Terrell McSweeny 

) 

In the Matter of ) Decision and Order 

) 

BENJAMIN MOORE & CO., INC., ) Docket No. C-4646 

a corporation. ) 

) 

)

 ) 

DECISION 

The Federal Trade Commission (“Commission”) initiated an investigation of certain acts and 

practices of the Respondent named above in the caption. The Commission’s Bureau of 

Consumer Protection (“BCP”) prepared and furnished to Respondent a draft Complaint. BCP 

proposed to present the draft Complaint to the Commission for its consideration. If issued by the 

Commission, the draft Complaint would charge the Respondent with violations of the Federal 

Trade Commission Act. 

Respondent and BCP thereafter executed an Agreement Containing Consent Order (“Consent 

Agreement”). The Consent Agreement includes: 1) statements by Respondent that it neither 

admits nor denies any of the allegations in the Complaint, except as specifically stated in this 

Decision and Order, and that only for purposes of this action, Respondent admits the facts 

necessary to establish jurisdiction; and 2) waivers and other provisions as required by the 

Commission’s Rules. 

The Commission considered the matter and determined that it had reason to believe that 

Respondent has violated the Federal Trade Commission Act, and that a Complaint should issue 

stating its charges in that respect. The Commission accepted the executed Consent Agreement 

and placed it on the public record for a period of 30 days for the receipt and consideration of 

public comments. The Commission duly considered the comments received from interested 

persons pursuant to Section 2.34 of its Rules, 16 C.F.R. § 2.34, and modified the Decision and 

Order in certain respects. Now, in further conformity with the procedure prescribed in Rule 

2.34, the Commission issues its Complaint, makes the following Findings, and issues the 

following Order: 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

Findings 

1. The Respondent is Benjamin Moore & Co., Inc, a New Jersey corporation with its 

principal office or place of business at 101 Paragon Drive, Montvale, New Jersey 07645. 

2. The Commission has jurisdiction over the subject matter of this proceeding and over the 

Respondent, and the proceeding is in the public interest. 

ORDER 

Definitions 

For purposes of this Order, the following definitions apply: 

A. “Clearly and conspicuously” means that a required disclosure is difficult to miss (i.e., 

easily noticeable) and easily understandable by ordinary consumers, including in all of 

the following ways: 

1. In any communication that is solely visual or solely audible, the disclosure must be 

made through the same means through which the communication is presented. In any 

communication made through both visual and audible means, such as a television 

advertisement, the disclosure must be presented simultaneously in both the visual and 

audible portions of the communication even if the representation requiring the 

disclosure is made through only one means. 

2. A visual disclosure, by its size, contrast, location, the length of time it appears, and 

other characteristics, must stand out from any accompanying text or other visual 

elements so that it is easily noticed, read, and understood. 

3. An audible disclosure, including by telephone or streaming video, must be delivered 

in a volume, speed, and cadence sufficient for ordinary consumers to easily hear and 

understand it. 

4. In any communication using an interactive electronic medium, such as the Internet or 

software, the disclosure must be unavoidable. 

5. On a product label, the disclosure must be presented on the principal display panel. 

6. The disclosure must use diction and syntax understandable to ordinary consumers and 

must appear in each language in which the representation that requires the disclosure 

appears. 

7. The disclosure must comply with these requirements in each medium through which 

it is received, including all electronic devices and face-to-face communications. 

8. The disclosure must not be contradicted or mitigated by, or inconsistent with, 

anything else in the communication. 

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9. When the representation or sales practice targets a specific audience, such as children, 

the elderly, or the terminally ill, “ordinary consumers” includes reasonable members 

of that group. 

B. “Close proximity” means that the disclosure is very near the triggering representation. In 

an interactive electronic medium (such as a mobile app or other computer program), a 

visual disclosure that cannot be viewed at the same time and in the same viewable area as 

the triggering representation, on the technology used by ordinary consumers, is not in 

close proximity. A disclosure made through a hyperlink, pop-up, interstitial, or other 

similar technique is not in close proximity to the triggering representation. A disclosure 

made on a different printed page than the triggering representation is not in close 

proximity. 

C. “Covered product” means any architectural coating applied to stationary structures, 

portable structures, and their appurtenances. 

D. “Volatile Organic Compound” (“VOC”) means any compound of carbon that participates 

in atmospheric photochemical reactions, but excludes carbon monoxide, carbon dioxide, 

carbonic acid, metallic carbides or carbonates, ammonium carbonate, and specific 

compounds that the EPA has determined are of negligible photochemical reactivity, 

which are listed at 40 C.F.R. Section 51.100(s). 

E. “Emission” means any compound that is emitted or produced during application, curing, 

or exposure of a covered product. 

F. “Trace” level of emission means: 

1. A VOC has not been intentionally added to the covered product; 

2. Emission of the covered product does not cause material harm that consumers 

typically associate with emission, including harm to the environment or human 

health; and 

3. Emission of the covered product does not result in more than harmless 

concentrations of any compound higher than would be found under normal 

conditions in the typical residential home without interior architectural coating. 

G. “Certification” means any seal, logo, emblem, shield, or other insignia that 

expresses or implies approval or endorsement of any product, package, service, practice, 

or program, or any attribute thereof. 

H. “Respondent” means Benjamin Moore & Co., Inc. and its successor and assigns. 

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I. Prohibited Misleading and Unsubstantiated Representations 

Regarding Emission and VOC Level of Covered Product 

IT IS ORDERED that Respondent, and Respondent’s officers, agents, employees, and 

attorneys, and all other persons in active concert or participation with any of them, who receive 

actual notice of this Order, whether acting directly or indirectly, in connection with the 

manufacturing, labeling, advertising, promotion, offering for sale, or sale of any covered product 

must not make any representation, expressly or by implication, that the emission level of a 

covered product is zero, or that the VOC level of a covered product is zero, unless the 

representation is non-misleading, including that, at the time such representation is made, 

Respondent possesses and relies upon competent and reliable scientific evidence that is sufficient 

in quality and quantity based on standards generally accepted in the relevant scientific fields, 

when considered in light of the entire body of relevant and reliable scientific evidence, to 

substantiate that: 

A. The covered product’s emission is zero micrograms per meter cubed and the covered 

product’s VOC content is zero grams per liter; or 

B. The covered product does not emit or produce more than a trace level of emission. 

For purposes of this Provision, “competent and reliable scientific evidence” means tests, 

analyses, research, or studies that have been conducted and evaluated in an objective manner by 

qualified persons and are generally accepted in the profession to yield accurate and reliable 

results. 

II. Prohibited Misleading and Unsubstantiated Representations 

Regarding Environmental and Health Claims 

IT IS FURTHER ORDERED that Respondent, and Respondent’s officers, agents, 

employees, and attorneys, and all other persons in active concert or participation with any of 

them, who receive actual notice of this Order, whether acting directly or indirectly, in connection 

with the manufacturing, labeling, advertising, promotion, offering for sale, or sale of any covered 

product must not make any representation, expressly or by implication, including through the use 

of a product name, regarding: 

A. The emission of the covered product; 

B. The VOC level of the covered product; 

C. The odor of the covered product; 

D. Any other health benefit or attribute of, or risk associated with exposure to, the covered 

product, including those related to VOC, emission, or chemical composition; or 

E. Any other environmental benefit or attribute of the covered product, including those 

related to VOC, emission, or chemical composition, 

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unless the representation is non-misleading, including that, at the time such representation is 

made, Respondent possesses and relies upon competent and reliable scientific evidence that is 

sufficient in quality and quantity based on standards generally accepted in the relevant scientific 

fields, when considered in light of the entire body of relevant and reliable scientific evidence, to 

substantiate that the representation is true. For purposes of this Provision, “competent and 

reliable scientific evidence” means tests, analyses, research, or studies that have been conducted 

and evaluated in an objective manner by qualified persons and are generally accepted in the 

profession to yield accurate and reliable results. 

III. Notice to Dealers and Distributors 

IT IS FURTHER ORDERED that Respondent deliver as soon as practicable, but in no 

event later than 60 days after the effective date of this Order, a notice in the form shown in 

Attachment A to all of Respondent’s dealers and distributors, and all other entities to which 

Respondent provided point-of-sale advertising, including product labels, for any covered product 

identified in Attachment A. The notice required by this paragraph must not include any 

document or other enclosures other than those referenced in Attachment A. 

IV. Prohibited Misleading Certification Marks 

IT IS FURTHER ORDERED that Respondent and Respondent’s officers, agents, 

employees, and attorneys, and all other persons in active concert or participation with any of 

them, who receive actual notice of this Order, whether acting directly or indirectly, in 

connection with the manufacturing, labeling, advertising, promotion, offering for sale, or sale of 

any covered product must not make any misrepresentation, expressly or by implication, 

regarding certifications, including: 

A. The fact that, or degree to which, a third party has, evaluated a product, package, service, 

practice, or program based on its environmental benefits or attributes; or 

B. That a certification is endorsed by an independent person or organization. 

V. Disclosure of Material Connection 

IT IS FURTHER ORDERED that Respondent and Respondent’s officers, agents, 

employees, and attorneys, and all other persons in active concert or participation with any of 

them, who receive actual notice of this Order, whether acting directly or indirectly, in connection 

with the manufacturing, labeling, advertising, promotion, offering for sale, or sale of any 

product, package, certification, service, practice, or program, must not make any representation, 

in any manner, expressly or by implication, about any user or endorser of such product, package, 

certification, service, practice, or program unless Respondent discloses, clearly and 

conspicuously, and in close proximity to the representation, any unexpected material connection, 

when one exists, between such user or endorser and (1) the Respondent or (2) any other 

individual or entity affiliated with the product or service. For purposes of this Provision, 

“unexpected material connection” means any relationship that might materially affect the weight 

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or credibility of the testimonial or endorsement and that would not reasonably be expected by 

consumers. 

VI. Means and Instrumentalities 

IT IS FURTHER ORDERED that Respondent, and its officers, agents, employees, and 

attorneys, and all other persons in active concert or participation with any of them, who receive 

actual notice of this Order, whether acting directly or indirectly, in connection with the 

manufacturing, labeling, advertising, promotion, offering for sale, or sale of any covered product, 

must not provide to others the means and instrumentalities with which to make, directly or 

indirectly, expressly or by implication, including through the use of endorsements or trade 

names, any false, unsubstantiated, or otherwise misleading representation of material fact, 

including but not limited to any representation prohibited by Provisions I, II, IV, or V, above. 

For purposes of this Provision, “means and instrumentalities” shall mean any information, 

including, but not necessarily limited to, any advertising, labeling, or promotional, sales training, 

or purported substantiation materials, for use by trade customers in their marketing of any 

covered product, in or affecting commerce. 

VII. Acknowledgments of the Order 

IT IS FURTHER ORDERED that Respondent obtain acknowledgments of receipt of this 

Order: 

A. Respondent, within 10 days after the effective date of this Order, must submit to the 

Commission an acknowledgment of receipt of this Order. 

B. Respondent must deliver a copy of this Order to: (1) all principals, officers, directors, 

and LLC managers and members; (2) all employees, agents, and representatives who 

participate in the subject matter of the Order; and (3) any business entity resulting from 

any change in structure as set forth in the Provision titled Compliance Report and 

Notices. Delivery must occur within 10 days after the effective date of this Order for 

current personnel. For all others, delivery must occur before they assume their 

responsibilities. 

C. From each individual or entity to which Respondent delivered a copy of this Order, 

Respondent must obtain, within 30 days after delivery, a signed and dated 

acknowledgment of receipt of this Order. 

VIII. Compliance Report and Notices 

IT IS FURTHER ORDERED that Respondent make timely submissions to the 

Commission: 

A. Sixty days after the issuance date of this Order, Respondent must submit a compliance 

report, sworn under penalty of perjury, in which Respondent must: (1) identify the 

primary physical, postal, and email address and telephone number, as designated points 

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of contact, which representatives of the Commission may use to communicate with 

Respondent; (2) identify all of Respondent’s businesses by all of their names, telephone 

numbers, and physical, postal, email, and Internet addresses; (3) describe the activities of 

each business; (4) describe in detail whether and how Respondent is in compliance with 

each Provision of this Order, including a discussion of all of the changes the Respondent 

made to comply with the Order and a copy of the notice sent to dealers and distributors; 

and (5) provide a copy of each Acknowledgment of the Order obtained pursuant to this 

Order, unless previously submitted to the Commission. 

B. Respondent must submit a compliance notice, sworn under penalty of perjury, within 14 

days of any change in any designated point of contact or the structure of Respondent or 

any entity that Respondent has any ownership interest in or controls directly or indirectly 

that may affect compliance obligations arising under this Order, including the creation, 

merger, sale, or dissolution of the entity or any subsidiary, parent, or affiliate that engages 

in any acts or practices subject to this Order. 

C. Respondent must submit notice of the filing of any bankruptcy petition, insolvency 

proceeding, or similar proceeding by or against Respondent within 14 days of its filing. 

D. Any submission to the Commission required by this Order to be sworn under penalty of 

perjury must be true and accurate and comply with 28 U.S.C. § 1746, such as by 

concluding: “I declare under penalty of perjury under the laws of the United States of 

America that the foregoing is true and correct. Executed on: _____” and supplying the 

date, signatory’s full name, title (if applicable), and signature. 

E. Unless otherwise directed by a Commission representative in writing, all submissions to 

the Commission pursuant to this Order must be emailed to DEbrief@ftc.gov or sent by 

overnight courier (not the U.S. Postal Service) to: Associate Director for Enforcement, 

Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue 

NW, Washington, DC 20580. The subject line must begin: In re Benjamin Moore, 

Docket No. C4646. 

IX. Recordkeeping 

IT IS FURTHER ORDERED that Respondent must create certain records and retain each 

such record for 5 years. Specifically, Respondent must create and retain the following records: 

A. Accounting records showing the revenues from all goods or services sold; 

B. Personnel records showing, for each person providing services, whether as an employee 

or otherwise, that person’s: name; addresses; telephone numbers; job title or position; 

dates of service; and (if applicable) the reason for termination; 

C. Records of all consumer complaints concerning the subject matter of the Order , 

including complaints involving representations covered by Parts I, II, IV, or V of the 

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Order, whether received directly or indirectly, such as through a third party, and any 

response; 

D. A copy of each unique advertisement or other marketing material making a representation 

subject to this Order; 

E. For 5 years from the date of the last dissemination of any representation covered by this 

Order: 

1. All materials that were relied upon in making the representation; and 

2. All tests, analyses, research, studies, or other evidence in Respondent’s 

possession, custody, or control that contradicts, qualifies, or otherwise calls into 

question the representation, or the basis relied upon for the representation, including 

complaints and other communications with consumers or with governmental or 

consumer protection organizations; and 

F. All records necessary to demonstrate full compliance with each provision of this Order, 

including all submissions to the Commission. 

X. Compliance Monitoring 

IT IS FURTHER ORDERED that, for the purpose of monitoring Respondent’s compliance 

with this Order: 

A. Within 10 days of receipt of a written request from a representative of the Commission, 

Respondent must submit additional compliance reports or other requested information, 

which must be sworn under penalty of perjury, and produce records for inspection and 

copying. 

B. For matters concerning this Order, representatives of the Commission are authorized to 

communicate directly with Respondent. Respondent must permit representatives of the 

Commission to interview anyone affiliated with Respondent who has agreed to such an 

interview. The interviewee may have counsel present. 

C. The Commission may use all other lawful means, including posing through its 

representatives as consumers, suppliers, or other individuals or entities, to Respondent or 

any individual or entity affiliated with Respondent, without the necessity of identification 

or prior notice. Nothing in this Order limits the Commission’s lawful use of compulsory 

process, pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b-1. 

XI. Order Effective Dates 

IT IS FURTHER ORDERED that this Order is final and effective upon the date of its 

publication on the Commission’s website (ftc.gov) as a final order. This Order will terminate on 

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April 24, 2038, or 20 years from the most recent date that the United States or the Commission 

files a complaint (with or without an accompanying settlement) in federal court alleging any 

violation of this Order, whichever comes later; provided, however, that the filing of such a 

complaint will not affect the duration of: 

A. Any provision in this Order that terminates in less than 20 years; 

B. This Order’s application to any Respondent that is not named as a defendant in such 

complaint; and 

C. This Order if such complaint is filed after the Order has terminated pursuant to this 

provision. 

If such complaint is dismissed or a federal court rules that the Respondent did not violate any 

provision of the Order, and the dismissal or ruling is either not appealed or upheld on appeal, 

then the Order will terminate according to this provision as though the complaint had never been 

filed, except that the Order will not terminate between the date such complaint is filed and the 

later of the deadline for appealing such dismissal or ruling and the date such dismissal or ruling 

is upheld on appeal. 

By the Commission. 

Donald S. Clark 

Secretary 

SEAL: 

ISSUED: April 24, 2018 

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Attachment A: Notice to Dealers and Distributors 

[on Respondent letterhead] 

[insert date] 

IMPORTANT NOTICE ABOUT ________________________ 

ADVERTISING AND MARKETING MATERIALS 

[insert addressee name] 

[insert addressee address used in the ordinary course of business] 

Dear Dealer or Distributor, 

In response to a complaint from the Federal Trade Commission, Benjamin Moore & Co., Inc. has 

agreed not to make claims that its paints contain zero VOCs (volatile organic compounds) or 

other harmful emissions, unless we can substantiate that the level is actually zero or otherwise 

comply with the settlement terms. We request that you immediately stop using existing 

________________ advertising and marketing materials that represent the emission level of any 

paint is zero, or that the VOC level of any paint is zero. 

In addition, our in-house Green Promise certification mark did not adequately identify it as a 

self-certification or the specific characteristics of the certification. 

We have included placards that you must display clearly and prominently next to the paint 

containers and at each point of sale to eliminate any misrepresentation to consumers. Enclosed 

are illustrations of how to properly place the placards. The placards must be displayed until you 

have sold all paint containers bearing the problematic claims. 

We will make revised marketing materials available to you shortly. Should you have any 

questions about compliance with this notice, please contact [insert contact person]. In addition, 

you can obtain further information about the settlement by visiting www.ftc.gov and searching 

for “Benjamin Moore.” 

Sincerely, 

[name] 

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LABEL UPDATE: 

Benjamin Moore’s “Zero Emission” 

and “Zero VOC” Paints 

Benjamin Moore Natura® Waterborne Interior “Zero Emission” paints

emit chemicals during the painting process and while drying. Some of

these chemicals can be harmful to sensitive groups such as babies and 

those suffering from asthma or allergies. 

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LABEL UPDATE: 

Benjamin Moore’s “Green Promise” Certification 

Benjamin Moore’s Green Promise® designation is the Company’s

assurance that this product meets—and often exceeds—rigorous

environmental and performance criteria regarding VOCs, emissions,

application, washability, scrubbability, and packaging, while also

delivering the premium levels of performance you expect from Benjamin

Moore. 

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