Valspar Advertising Challenge Successful Before the National Advertising Review Board

June 10, 2009

For the second time in a year, Valspar, represented by Fredrikson & Byron attorney Steve Bergerson, was successful in an advertising challenge before the National Advertising Review Board, an industry arbitration forum.

Valspar challenged advertising claims being made by Mythic Paints, a manufacturer of a new line of nationally distributed paints, including:

• “Mythic Paint is the only zero-VOC, zero-carcinogenic, premium quality line of latex paints available … these VOCs contribute to human illness and have been determined to be a cause of ‘sick building syndrome’."
• “Carcinogens and VOCs emitted by traditional paints have been linked to a variety of health effects including eye, nose, and throat irritation; dizziness and even cancer.”
• “Our paint doesn’t contain anything that you need to be afraid of.”
• “Toxicity and danger poised by traditional paints is little known among the general population … many do not understand the threat of VOCs and other toxic compounds …. The Environmental Protection Agency (EPA) has identified VOCs as adversely affecting air quality inducing depletion of the ozone layer, global warming, and the rise of respiratory illnesses.”
• “Mythic paint is a non-toxic, ultra low odor paint that provides the durability and coverage you would expect from a premium paint without cancer-causing toxins and VOCs.”
• “Mythic Paint is the only zero-VOC, zero-carcinogenic, premium quality line of latex paints available.”

Valspar specifically challenged Mythic’s claims that (1) its paints are safer than “traditional” paints and (2) that all other latex paints are carcinogenic, toxic, and unsafe for humans and the environment, and alleged that Mythic’s “zero toxin, zero carcinogen” advertising was misleading because it didn’t disclose that the color additives used by most retailers do contain toxins and carcinogens.

The Board determined that although Mythic paints had lower levels of certain toxic ingredients than other paints, its advertising misrepresented the health risks posed by competitive products. It held that Mythic should (1) discontinue or modify its comparative health and safety claims, and (2) stop representing that it is the only Premium Paint with no VOCs, toxins, or carcinogens.

The Board also ruled that Mythic’s future advertising should clearly and conspicuously disclose that its health, safety, and environmental claims are true only if retailers use Mythic’s own color additives (which few do).