The Federal Trade Commission has announced several proposed settlements in which mattress companies agreed not to make unsupported environmental claims about their latex mattresses. Relief-Mart, EcoBaby Organics, and Essentia Natural Memory Foam Company had each promoted their products as free of volatile organic compounds (VOCs). Relief-Mart and Essentia had also claimed that their products did not have the odor typically associated with memory foam. Essentia and EcoBaby had represented that their products were chemical-free, formaldehyde-free, and non-toxic. And finally, Essentia had advertised its mattresses as 100% natural, while EcoBaby’s promotional materials displayed its certification by NAOMI, the National Association of Organic Mattress Industry. The FTC initiated enforcement actions because the three companies could not demonstrate that their claims were backed by competent and reliable scientific evidence. The FTC also determined that NAOMI is merely an alter-ego of EcoBaby and that NAOMI did not apply objective standards when it granted EcoBaby its seal of approval.
The FTC, which has the task of policing unfair and deceptive marketing practices, issued its revised Green Guides in October 2012. The Green Guides indicate that environmental marketing claims—including “free-of” and “natural” claims—must have a reasonable basis, which often includes competent and reliable scientific evidence. Marketers must ensure not only the truthfulness of their express claims, but also the reasonable interpretations of their claims. Thus, when Relief-Mart claimed that its mattresses lacked the odors typically associated with other memory foam mattresses, the FTC found that a reasonable consumer could infer that Relief-Mart mattresses were free of VOCs. Without scientific evidence to substantiate that its mattresses meet the FTCs definition of VOC-free, Relief-Mart may neither directly state that its mattresses are VOC-free, nor may it indicate that the mattresses have no odor.
The Green Guides offer specific guidance on seals and certifications and provide that such seals may be endorsements. The FTC’s Endorsement Guides require disclosure of material connections between the endorser and the marketer. EcoBaby created NAOMI, which granted EcoBaby its seal of approval, according to the FTC, without applying objective standards. NAOMI’s website indicates that Pure-Rest Organics (EcoBaby) is the only company to have met NAOMI’s standards. The FTC has found that EcoBaby’s use of the NAOMI seal is deceptive because it gives the impression of a third-party, independent certification that is based on the application of objective standards.
These FTC actions are important beyond the mattress industry because they demonstrate that the FTC will take action against unsubstantiated “free-of” claims. Marketers should ensure that they have competent and reliable scientific evidence to back claims that a product is free of VOCs, and should also have substantiation for more general claims such as “non-toxic” or “chemical-free.” Terms like “100% natural” and “no chemical odor” may trigger FTC scrutiny because of the meanings they might imply to a reasonable consumer.
The FTC’s proposed settlements with the mattress companies indicate that a marketer should not claim that a product is “VOC-free” unless it has competent and reliable scientific evidence that the VOC emission level is zero micrograms per meter cubed or that the product contains no more than a trace level of VOCs. The FTC allows for “trace” levels when 1) no VOCs have been intentionally added; 2) the level is so low that it does not cause the harm to environment or health typically associated with the VOCs; and 3) the level is not higher than the “background levels in the ambient air.” In no case should a marketer claim that a product has been tested for VOCs or other chemicals when the marketer does not actually possess evidence of such tests.
The information provided in this blog post is generic and based on the general definitions and provisions of FTC regulations as well as the FTC’s documents concerning the actions against Relief-Mart, EcoBaby Organics, and Essentia Natural Memory Foam Company. This blog post and the information it contains should not be interpreted as legal advice for any specific situation. Individuals with specific questions about their business are encouraged to consult an attorney.
photo by bird’s eye
