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In Precedent-Setting Case, Company Settles with EPA on Charges that "Mildew-Proof" Paint is Unregistered Pesticide; Agrees to Pay $46,000 Penalty and Change Labels and Promo Material

Release Date: 12/07/2000
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(#00219) New York, N.Y. -- William Zinsser & Company, Inc., the Somerset, New Jersey-based paint manufacturer, has settled with the U.S. Environmental Protection Agency (EPA) on charges that it sold "mildew-proof" paint that was not registered with EPA as a pesticide. The agency maintained that the sale of the product violated the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the law that regulates pesticides. This is the first settlement in the nation of charges against a paint manufacturer for making unsubstantiated "mildew-proof" pesticidal claims about a paint product on the label, in hard-copy advertising and in promotional material on the Internet. The company has agreed to pay a penalty of $46,000 within 45 days, and to make permanent changes to the paint’s label and promotional material. "We are pleased that this matter has been resolved, and expect manufacturers of similar products to take note," said Jeanne M. Fox, EPA Regional Administrator. "Our goal is to stop the recent trend of companies making unsubstantiated claims that their products destroy bacteria, mold, mildew and fungus, and this settlement is a major step in that direction." A May 1999 EPA inspection of the Zinsser facility at 173 Belmont Drive in Somerset and information supplied by the company revealed that it sold "Perma-White Mildew-Proof Bathroom Paint" in both semi-gloss and satin finishes on 15 occasions in April 1999. Labels on the Perma-White paint cans and promotional literature made pesticidal claims like: "Guaranteed mildew-proof"; "After five years, no sign of mildew on this Perma-White ceiling of a bathroom"; and "Even damp, masonry basement walls can be painted with Perma-White to prevent mildew growth so common in these areas." The company also used a "buster" symbol to imply the product prevented mildew, with the words "mildew-proof" appearing nearby. Zinsser’s promotional materials and labels implied that the paint could protect other items – in this case walls and ceilings – from mildew. Had the company instead claimed that an EPA-registered pesticide used in the paint protected only the paint film itself from mildew, the sale of the product would not have violated FIFRA, as EPA charged. This is due to FIFRA’s "treated article exemption," which states that any product treated with or containing a pesticide registered by EPA to protect the product itself – like wood treated with a pesticide to protect it from infestation or a paint treated with a pesticide to protect the paint coating itself – need not be registered separately with EPA as a pesticide. According to EPA, because of the claims Zinsser made, the Mildew-Proof paint did not meet the treated article exemption and its sale as an unregistered pesticide was a violation of FIFRA. EPA’s September 1999 complaint against Zinsser charged 15 separate FIFRA violations – once for each sale in April 1999. In its response to the complaint, the company stated that it believed that its Mildew-Proof paint did qualify as a treated article. In settlement with the agency, Zinsser will undertake the following in addition to paying a $46,000 penalty: Within 30 days, Zinsser will put a disclaimer reading "This product contains a mildewcide to prevent the growth of mildew on the paint film only" on all newly manufactured Mildew-Proof containers. After February 11, 2001, all newly manufactured cans of Mildew-Proof paint must bear a new label and lid label based on a model approved by EPA. The new label must include an asterisk after every "mildew-proof" claim, referring to a prominent disclaimer on the front panel (or on the lid if a mildew-proof claim appears there) that limits the claim to the paint film only. By February 11, 2001, point-of-sale signs in stores selling Mildew-Proof paint must bear prominent stickers of the disclaimer described in the first bullet. Signs with stickers must remain in stores until all existing stock of product with the original label (including stock with the disclaimer) has been sold. By February 11, 2001, the company will inform its distributors and appropriate web sites about the changes to the Mildew-Proof paint label, and give EPA a list of these entities. Zinsser will certify to EPA by July 31, 2001 that any promotional materials for or mentioning Mildew-Proof paint – including point-of-sale signs and websites – are permanently changed so that their language meets the requirements of the treated-article exemption. The company faces additional monetary penalties if it does not comply with requirements of the agreement. William Zinsser & Company, Inc. has approximately 200 employees and annual sales of approximately $20 million. It is wholly owned by specialty coatings manufacturer RPM, Inc., which has annual sales of approximately $1.6 billion.