CAA Permitting and NAAQS Review

On April 9, Verdant attorney Kurt Blase addressed the American Coatings Association Powder Coatings Committee on Powder and PM: Permitting and NAAQS Review. The presentation examined the effect of powder coating lines on facility particulate matter (PM) emissions, and the potential effects of EPA’s current review of the PM national ambient air quality standards (NAAQS) on permitting of powder operations.

It was reported that the addition of powder lines at a facility is likely to increase PM permitting requirements, and that permit conditions are likely to be more stringent for facilities located in airsheds that include other significant PM sources. EPA’s progress to date in the PM NAAQS review was then discussed, including the possibility that the review could result in more stringent standards for PM2.5, PM10 or both. If that were to occur, permitting requirements for powder lines may become more stringent as well. EPA is on a schedule to complete the PM NAAQS review by late 2020.

Green Marketing, the FTC’s “Green Guides,” and “Zero VOC”

Phil Moffat presented on Green Marketing, the FTC’s “Green Guides,” and “Zero VOC” at the American Coatings Association’s Conference Making Sustainability Ideas Happen: Coatings For the Future on April 10, 2019.

The presentation opened with an overview of green marketing, noting that the number of environmental marketing claims is on the rise, with an attendant increase in the number of claims that are false and/or deceptive, and that DIY building and construction products are being “greened” more quickly than rest of home and consumer products marketplace. 

The Green Guides

Mr. Moffat then discussed the FTC Act and the FTC’s Green Guides.  He noted that, section 5 of the FTC Act, 15 U.S.C. § 45, authorizes the FTC to take legal action against “unfair or deceptive” practices in commerce, however the statute doesn’t give FTC the authority to set environmental standards (e.g., testing protocols).  He also explained that the FTC published the Green Guides to help advertisers avoid making deceptive claims under Section 5, stressing that the Green Guides are non-binding administrative interpretations.  The presentation noted that because the Green Guides are non-binding administrative interpretations, they don’t preempt federal, state, or local law; compliance will not necessarily preclude FTC enforcement of Section 5; and that compliance with voluntary standards won’t guarantee Section 5 compliance.

Mr. Moffat explained that the Green Guides apply to claims about the environmental attributes of a product, package, or service in connection with the marketing, offering for sale, or sale of such item or service to individuals, businesses, or other entities; and that Section 5 applies to environmental claims in any marketing medium, whether asserted directly or by implication. He then reported on principles established by the Guides that focus on avoiding deception: “a representation, omission, or practice is deceptive if it is likely to mislead consumers acting reasonably under the circumstances and is material to consumers’ decisions.”  

The presentation also discussed the need to substantiate claims.  Marketers must identify all express and implied claims that the advertisement reasonably conveys, and ensure that all reasonable interpretations of their claims are truthful, not misleading, and supported by a reasonable basis.  For environmental marketing claims, a “reasonable basis” often requires “competent and reliable scientific evidence.”

The presentation then reviewed a type of claim popular with the building products industry – certifications and seals of approval.  Certifications and seals of approval are often “endorsements” covered by the FTC’s Endorsement Guides, 16 CFR Part 255.  The presentation noted that third-party certifications and seals of approval are appealing, but stressed that companies must exercise due diligence because third-party certifications and seals are not a safe haven from enforcement or lawsuits.

FTC and “Zero VOC”

Mr. Moffat then reported on FTC Enforcement re Zero VOC Claims pre 2017 – 2018 and post 2017-2018 and noted differences between the two.  

In 2017 – 2018 the FTC took enforcement actions against four companies for Zero VOC Claims.  The companies were making variety of claims, such as:

  • Zero emissions,
  • Zero VOC
  • No odor, and
  • Pregnancy/baby safe,
  • Asthma and allergy approved.

The consent agreements that FTC entered into with these companies defined “trace” level of emissions as follows:

  • Intentional Addition: A VOC has not been intentionally added to the product;
  • Material Harm: Emission of the product does not cause material harm that consumers typically associated with emission, including harm to the environment or human health; and
  • Background: Emission of the 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.

Emission means any compound that is emitted or produced during application, curing, or exposure of a covered product.

Following the 2017-1018 enforcement actions, the FTC’s position is that:

  • Consumers understand “Zero VOC” primarily as an emissions claim;
  • “Emission” is broadly defined to include VOC, as well as other substances emitted and produced (e.g., SVOC, exempts);
  • Zero VOC claims means a prohibition on exceedance of background concentrations during application and drying; and
  • Defines background as “normal” conditions in the “typical” unpainted house.

The presentation noted that the FTC has rescinded the 2013 Enforcement Policy and that the industry should now follow the 2018 Consent Orders and accompanying guidance letters.  The guidance letters suggest that compliance for a Zero VOC claim can be achieved if a company can substantiate that:

  • Its product has trace levels of emissions six hours or less after application and afterwards, and
  • That the paint contains no substance that could cause material harm to the average adult under normal anticipated use.

Mr. Moffat closed the program by stressing that claiming Zero-VOC carries risk.  He observed that companies considering such claims should first ensure the return is worth the legal, commercial, and reputational risks, and then develop an approach to manage those risks, including their approach to substantiation, disclosures, etc.

EPA Draft Guidance helps Distinguish When Biostimulants are Pesticides under FIFRA

On March 27, 2019, EPA published Draft Guidance for Plant Regulator Label Claims, Including Plant Biostimulants.  The guidance is intended to help companies that produce products that the Agency considers to make claims that are considered plant growth regulator (PGR) claims. This is because making PGR claims subjects the products to regulation under FIFRA as pesticides.  According to EPA, “plant biostimulants” (PBS) are a relatively new category of products containing naturally-occurring substances and microbes that are used to stimulate plant growth, enhance resistance to plant pests, and reduce abiotic stress.

A product makes a PGR claim if, through physiological action, it claims to:

  • Accelerate or retards the rate of plant growth;
  • Accelerate or retards the rate of plant maturation; or
  • Otherwise alter the behavior of plants or the produce thereof.

The draft guidance does not provide a definition for “plant biostimulant,” nor does any EPA regulation. The Guidance does provide the following “description” of PBS: 

“Generally speaking, a ‘plant biostimulant’ is a naturally-occurring substance or microbe that is used either by itself or in combination with other naturally-occurring substances or microbes for the purpose of stimulating natural processes in plants or in the soil in order to, among other things, improve nutrient and/or water use efficiency by plants, help plants tolerate abiotic stress, or improve the physical, chemical, and/or biological characteristics of the soil as a medium for plant growth.”

The Agency is asking for comments on whether EPA should develop a definition for plant biostimulants, noting that the development of a definition would require rulemaking.

At the heart of the issue is whether a PBS product, as understood by EPA, physiologically influences the growth and development of plants in such a way as to be considered plant regulators by the Agency, and thereby triggering regulation under FIFRA as a pesticide. FIFRA section 2(u) includes plant regulators in its definition of a pesticide.  

Based on the plant regulator definition contained in FIFRA section 2(v), EPA believes that many PBS products and substances may be excluded or exempt from regulation under FIFRA depending upon their intended uses as plant nutrients (e.g., fertilizers), plant inoculants, soil amendments, and vitamin-hormone products.  

A key consideration in determining whether or not a product is a pesticide is what claims are being made on product labels. The draft guidance is intended to provide assistance for identifying product label claims that are considered to be plant regulator claims by the Agency, thereby subjecting the products to regulation under FIFRA as pesticides. The guidance provides examples of product label claims generally considered “non-pesticidal:”

  • Plant nutrition-based claims (i.e., necessary for normal growth of plants and in a form readily useable by plants);
  • Plant inoculant-based claims (i.e., enhance availability/update of plant nutrients through root system); and
  • Soil amendment-based claims (i.e., intended for the purpose of improving soil characteristics favorable for plant growth).

The guidance also provides examples of generic product label claims generally considered by the Agency to be “non-pesticidal.”  In addition, examples of label claims that are considered by the Agency to be PGR claims that trigger regulation under FIFRA as a pesticide are included.  A list of PGR active ingredients contained in EPA-Registered Products is included as well.

The Federal Register notice announcing the guidance notes that as guidance the document is not binding on the Agency or any outside parties, and that the Agency may depart from it where circumstances warrant and without prior notice.

Irene Hantman to Moderate ABA SEER Program — Controversies in Food Contact

The November Safer Chemicals, Healthy Families Food Contact Report Card pointed a spotlight on food contact substances, leaving consumers to wonder whether they should be concerned about the presence of PFAS and other toxic substances in their food packaging.  A panel of experts in food contact issues will discuss this issue.  The program will also provide background on FDA jurisdiction and key concepts such as TTC (Threshold of Toxicological Concern).  Join key stakeholders in this discussion.

This program is presented by thePesticides, Chemical Regulation, and Right-to-Know Committee, ABA Section of Environment, Energy, and Resources; Food, Cosmetics, and Nutrceuticals Committee, ABA Science and Technology Law Section; Food Safety Specialty Section, Society of Toxicology

Thursday April 25, 2019, 11:30 – 1:00

Paul Honigfort,  Director, Division of Food Contact Notifications, Center for Food Safety and Applied Nutrition
Mitch Cheeseman, Steptoe
Tom Neltner, Environmental Defense Fund
Kevin Kenny, Decernis

Irene Hantman, Verdant Law

Verdant Law, 10 G Street NE, Washington, DC
(Remote participation is also available.)

To register for the program contact Andrew Sitko at