In the past several days, OSHA has revised portions of the pandemic guidance issued previously, and the President has issued an Executive Order on regulatory relief to support the economic recovery. Key aspects of these recent actions are summarized below.

Executive Order on Regulatory Relief

The President’s Order includes the following primary provisions:

1. Agencies should address this economic emergency by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery, consistent with applicable law.
2. The heads of all agencies are directed to use, to the fullest extent possible and consistent with applicable law, any emergency authorities available to them.
3. The heads of all agencies must identify regulatory standards that may inhibit economic recovery and consider taking appropriate action, including by issuing proposed rules as necessary, to temporarily or permanently rescind, modify, waive, or exempt entities from those requirements for the purpose of promoting job creation and economic growth.
4. The heads of all agencies shall accelerate procedures by which a regulated entity may receive a pre-enforcement ruling with respect to whether proposed conduct in response to the pandemic is consistent with statutes and regulations administered by the agency.
5. In formulating policies of enforcement discretion, good faith attempts to comply with applicable guidance should be considered a rationale for declining enforcement. Non-adherence to guidance may not by itself form the basis for an enforcement action by a Federal agency.

Revised OSHA Guidance for Identifying Work-Related Coronavirus Cases

OSHA has revised its enforcement guidance for recording cases of coronavirus as a workplace-related illness on OSHA Form 300.  Under OSHA’s recordkeeping requirements, employers are responsible for recording cases of COVID-19, if:

1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
2. The case is work-related as defined by 29 CFR § 1904.5; and
3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7

Employers must make a reasonable inquiry to determine if a case is work related and recordable.  A reasonable inquiry does not require the employer to contact medical personal or obtain medical records.  An employer can rely on statements made by an employee.  An employer must ask the employee how he or she believes she contracted COVID-19; inquire about any out-of-work activities while respecting employee privacy; and review employees work environment while considering any other employees that may have contracted COVID-19.

An employer must consider any reasonably available information, even if obtained at a later time, after the employee’s infection.  OSHA also notes the following as indicators of work-related cases of COVID-19:

• Several cases among employees who typically work closely together;
• Employee contracts COVID-19 after lengthy, close exposure with a customer or another employee with a confirmed case of COVID-19, with no other explanation; or
• The employee’s job duties include frequent, close exposure to the general public in location with ongoing community transmission;

OSHA also notes that a case is not likely to be work-related where an employee’s case is the only case in the vicinity and the job duties do not include contact with the public.   An employee’s close and frequent association with someone outside of work who contracts COVID-19 also indicates the employee’s case is not work related.

If after making a good-faith effort to determine if the case is work-related and the employer still cannot make a determination, the employer does not need to record the case as a work-related illness.

A work-related case should be coded as a respiratory illness on OSHA Form 300.  An employees’ identity need not be provided, if the employee requests confidentiality.

Revised OSHA Enforcement Plan

In response to workplaces reopening, OSHA has revised its Interim Enforcement Response Plan for COVID-19.  OSHA will increase workplace inspections and enforcement in geographic areas experiencing either sustained elevated community transmission or a resurgence in community transmission.  Particular attention for on-site inspections will be given to high-risk workplaces, including workplaces with high numbers of complaints or known COVID-19 cases.  The policy includes inspection, citation and rapid response procedures.

Applicability of OSHA standards varies by workplace.  OSHA identifies the following as standards that may apply:

• 29 CFR Part 1904, Recording and Reporting Occupational Injuries and Illness.
• 29 CFR § 1910.132, General Requirements – Personal Protective Equipment.
• 29 CFR § 1910.133, Eye and Face protection.
• 29 CFR § 1910.134, Respiratory Protection.
• 29 CFR § 1910.141, Sanitation.
• 29 CFR § 1910.145, Specification for Accident Prevention Signs and Tags.
• 29 CFR § 1910.1020, Access to Employee Exposure and Medical Records.
• Section 5(a)(1), General Duty Clause of the Occupational Safety and Health (OSH) Act of 1970.

Verdant Law includes experienced attorneys who have been following these developments closely and stand ready to assist clients with regulatory or enforcement issues, whether with OSHA or other agencies.

Phil Moffat and Irene Hantman presented on the green marketing legal landscape at the Product Stewardship Conference on September 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. 

Ms. Hantman reviewed the “seven sins” of greenwashing:

• Hidden Trade-Off
  • No Proof
  • Vagueness
  • Irrelevance
  • The Lesser of Two Evils
  • Fibbing
  • Worshiping False Labels

Ms. Hantman then reported on litigation over green marketing claims.  She noted that green marketing claims have been litigated in federal and state courts, in administrative proceedings before the FTC, and in private forums, and that companies face litigation from federal agencies, state agencies, and from private parties.  First Ms. Hantman discussed the 2017 case ECM Biofilms v. FTC.  That case began when the FTC filed an administrative complaint, ECM then appealed the agency’s findings – that ECM violated the prohibition in section 5 of the FTC Act on the use of deceptive advertising —  all the way to the 6^th Circuit Court of Appeals, where the court upheld FTC’s finding. 

Ms. Hantman also reported that Volkswagen paid $570 million for deceptive marketing in a settlement with the Attorneys General for 41 states, Washington, DC, and Puerto Rico.  That settlement was part of the litigation over Volkswagen’s use of defeat devises in “green” diesel cars.

Ms. Hantman then shared information on other FTC enforcement against green marketing claims including, the 2018 settlements against Benjamin Moore, ICP Construction, YOLO Colorhouse, and Imperial Paints for misleading claims that their products were free of emissions and volatile organic compounds (VOCs).  She also reported on FTC’s enforcement against Engineered Plastic Systems in 2014.  That case involved business to business marketing.  Under the final FTC consent order, the company must have credible evidence including scientific proof, to support any environmental benefit claims it makes.

Ms. Hantman also provided information regarding recommendations made by the National Advertising Division (NAD), Better Business Bureau in green marketing cases brought before the NAD by competitors.  She described the Olivet case in which Van Ness Plastic Molding Company challenged Olivet’s claim that its containers are made of recycled materials.  She also described cases involving sustainability and energy savings claims.

Mr. Moffat then provided information on sources of regulation of green marketing claims.  He discussed the role of the NAD in investigating competitor challenges and consumer complaints.  He reported that all states and the District of Columbia have consumer protection statutes.  Mr. Moffat also described private causes of action that consumers and competitors might pursue.

Mr. Moffat then presented information on 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 explained 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.”

Mr. Moffat provided examples of the specific topics covered by the Green Guides including:

• General environmental benefit claims,
• Certifications and seals of approval,
• Degradable,
• Free-of,
• Non-toxic, and
• Recycled content.

The presentation then discussed general environmental benefits claims.  Mr. Moffat noted that marketers should not make unqualified general environmental benefit claims as it is difficult, if not impossible, to substantiate all express and implied claims.

Mr. Moffat also reported on issues raised by seals of approval and certifications.  He explained 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.

Mr. Moffat wrapped up the presentation with examples of when free-of and non-toxic claims can be deceptive.

Click here for a copy of the presentation.

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.