Legal Report on Recent Developments Impacting NFRC

Transcription

1 Legal Report on Recent Developments Impacting NFRC NFRC Fall Membership Meeting Portland, Oregon October 1 4, 2012 Presented by Scott Meza, Esq. Greenberg Traurig, LLC November GREENBERG TRAURIG, LLP ATTORNEYS AT LAW Presentation to Pegasus Corp.

2 RECENT DEVELOPMENTS AT NFRC Attachments and EPAct DOE was asked by representatives of attachments industry to confirm that 121 of Energy Policy Act of 1992 (EPAct) does not apply to attachment products. Goal was to confirm that attachments are not part of the voluntary certification, rating and labeling program exclusively entrusted to NFRC under EPAct. If that is the case, entities other than NFRC may develop rating, certification and labeling systems for window attachments that might be recognized by federal government for various purposes (e.g. tax credits; perhaps eventually EnergyStar), also for marketing purposes. 2

3 RECENT DEVELOPMENTS AT NFRC (continued) NFRC presented its position to DOE that attachments should be included under EPAct on grounds that: Attachments fall within plain meaning of window systems and alternative window products under EPAct. NFRC has a broad mandate to develop uniform, credible procedures for certifying energy efficiency of fenestration products (and already rates film attachments). Therefore, as a policy matter, it is reasonable to include attachments in that broad mandate. Allowing other parties to develop certification and labeling programs for attachments present risks of potentially inconsistent, conflicting systems, outcomes for rating energy performance of windows versus attachments which could mislead and confuse customers. 3

4 RECENT DEVELOPMENTS AT NFRC (continued) DOE S legal department did not accept NFRC s position; on its face that decision appears to be on technical grounds; not for policy reasons; An attachment is not a window nor is it necessarily connected to a window and is not an alternative form of window. [DOE letter] This decision at DOE may open door for creation of attachments rating and certification organizations. Whatever develops in the attachments rating arena, focus must be on providing credible information about energy performance, because if not 4

5 FTC IS ACCELRATING ENFORCEMENT ACTIONS FOR DECEPTIVE ENERGY PERFORMANCE CLAIMS THAT S WHY WE NEED NFRC!! In the early 90 s NFRC was formed at the instigation of FTC and Congress because of concerns that window manufacturers were making unsubstantiated claims about the energy performance of their products. FTC message: if the fenestration industry and other stakeholders did not implement a fair and credible system for rating and labeling the performance of fenestration products, the FTC would do it. History repeats itself; the impact of federal and state energy legislation and tax credits and consumers interest in energy savings is leading to litigation over misrepresentations to consumers about energy performance of a variety of products (from buildings to LED light bulbs). Without a fair and credible certification and rating program to verify the energy performance of window products and systems, unproven claims of performance will proliferate and litigation from disappointed consumers and competitors will continue. 5

6 FTC IS ACCELRATING ENFORCEMENT ACTIONS FOR DECEPTIVE ENERGY PERFORMANCE CLAIMS THAT S WHY WE NEED NFRC!! (continued) Recently, FTC has initiated a broad effort to ensure that environmental marking is truthful and based on solid scientific evidence. FTC recently filed several administrative complaints alleging that companies selling replacement windows engaged in deceptive practices by making unsupported energy efficiency and money saving claims; deceptive claims included alleging a percentage savings on energy bills; saving a bundle on energy costs., etc. Claims were made in marketing materials to consumers and materials provided to distributors/resellers; also representations were made on websites. Several defendants may enter into consent settlements with FTC that include cease & desist orders. 6

7 Some Key Factors Identified by FTC in These Cases FTC: Energy-savings claims must be backed up by competent and reliable scientific evidence. Watch out for up to claims; because consumers all believe they will get the max benefits, referenced in the claim. Alleged energy savings resulting from energy modeling software varies depending on the variables of the home selected for modeling. So, don t choose atypical characteristics that produce inflated results. Clearly and prominently disclose assumptions leading to claims. Disclosures in small, difficult to read type won t cure a deceptive savings claim. Be careful what you tell your dealers and retailers; you may be liable to them and to their customers. 7

8 Some Key Factors Identified by FTCU (continued) For these reasons, there is great value in having an independent third-party (e.g. NFRC) to provide verification and certification of the energy performance of fenestration products and then proper labeling of that information. NFRC has to be vigilant in continuing to produce credible information to consumers and make clear the assumptions that underly the ratings. 8

9 Your Honor, my client is ready to sing. November GREENBERG TRAURIG, LLP ATTORNEYS AT LAW Presentation to Pegasus Corp.

10 You have heard testimony that the day in question was cold, windy, and with above-average precipitation. Do you still maintain it was a nice day? 10

11 Q: What's the difference between a lawyer and a boxing referee? A: A boxing referee doesn't get paid more for a longer fight. ******************* Q: What's the difference between a lawyer and a liar? A: The pronunciation. ***************** Q: What do you get when you cross the Godfather with a lawyer? A: An offer you can't understand 11

12 Q: What do you call parachuting lawyers? A: Skeet. 12

13 NFRC Membership Meeting October 1-4, 2012 Presented by Scott Meza Greenberg Traurig, LLC 13