TACOMA, Wash. (Legal Newsline) – Benjamin Moore and Co. has filed a motion to dismiss a class action suit that claims the company is falsely advertising its Natura paint as being free of emissions and toxins.
On March 12, in the U.S. District Court of the Western District of Washington at Tacoma, Benjamin Moore filed its motion to dismiss the Jan. 25 complaint brought by Whitney Poole, who claimed the company falsely advertised the paint as being toxin-free when it allegedly contains toxic ingredients.
Poole is seeking damages on behalf of herself and similarly affected customers. Her suit was filed in the Superior Court of Washington in Kitsap County. The defendant requested to remove the suit to federal court March 5.
According to the lawsuit, the advertising of the paint being non-toxic revolved around the “Green Promise” label that assured customers the paint was emissions and toxin-free.
The suit alleges that the company misrepresented that Natura paint was endorsed or certified by an independent third party. It notes that the Federal Trade Commission filed a July 2017 complaint against Benjamin Moore for allegedly engaging in unfair and deceptive practices. It also notes that Benjamin Moore agreed to stop misrepresenting its Natura paint as emission free and containing no volatile organic compounds (VOCs), "but only after thousands of consumers were already harmed by Benjamin Moore’s misconduct.”
The suit states that Benjamin Moore advertised that its paints were better for consumers and the environment, using terms like “green,” "natural” and “safe.” It notes that Natura paints were sold for $57 per gallon, while paints not labeled with the “Green Promise” cost between $30 and $40 per gallon. It also claims Poole and other consumers were financially injured because they wouldn’t have purchased the paint or paid as high a price if they had known the paints contained toxins.
The suit includes text from an updated label that states, “All ‘Zero Emission’ and ‘Zero VOC' (volatile organic compound) paints emit chemicals during the painting process and while drying.” It goes on to say, “Benjamin Moore Natura Waterborne Interior ‘Zero Emission’ paints may emit chemicals for the first four hours after latest application.”
Benjamin Moore argued in the motion to dismiss that Poole’s allegations – which the company maintains are not true – don’t support her claim for release. The company notes that Poole doesn’t allege that she saw the “Green Promise,” “zero emissions” or “zero VOCs” labels before purchasing the paint or that it played a role in her selection.
“Rather, plaintiff appears to have become aware of these statements (likely advised by her counsel) for the first time only after her purchase(s) of Natura paint,” the motion reads.
Moore also argued Poole can’t file a class action suit because there are fewer than 100 named plaintiffs. The motion notes the “claim purports to be brought on behalf of a nationwide class of purchasers of Natura paint. However, there is only one named plaintiff – Ms. Poole."