As we have previously warned, the Federal Trade Commission (“FTC”) is continuing its “second phase” non-public investigation against select window manufacturers and contractors. The first phase concluded some months ago and made headlines as the FTC entered into consent decrees with Gorell Enterprises, Long Fence & Home, Serious Energy, THV Holdings, and Winchester Industries.

This problem stems from a decades-long practice within our industry of simply “one-upping” competitors’ claims as to energy-saving performance, or relying on the advice from consultants who are more concerned about lead generation than truly understanding the legal intricacies of advertising in the industry itself. Don’t expect your manufacturer or your marketing agency to have any idea how to assist with this. It is imperative that contractors cease sending out advertising materials without first making sure those items can be backed up legally. Marketing and selling with outdated practices will land you on the wrong side of an Attorney General investigation or a class action lawsuit in this day and age -– as more and more companies are beginning to realize.

The FTC recently issued “soft letters” to over a dozen industry contractors advertising energy saving claims in regard to windows. The letters warn the contractor that while the FTC is not claiming the contractor’s advertising is in violation of federal law, the FTC is requiring the contractor to examine its advertising and advise as to any changes the contractor is going to undertake to ensure that its advertising is legally sound.

In an unfortunate turn, the FTC is planning on making these soft letters letters available to the public sometime in the next week or two. Berenson LLP lodged a protest on this intended publication, but we do not expect to sway the FTC Commissioners in their position.