NEWARK (CN) - Benjamin Moore touts its Natura interior paint as "virtually odorless," but a federal class action says the paint stinks - for months. The class claims that Moore issued a deficient "Product Replacement" notice to retailers that did not admit the extent of the problem.
The paint, which Moore markets for "parents of young children and others who are particularly concerned about environmental issues," not only emits a foul, persistent odor, but fails to dry in 30 minutes as promised, and remains "wet and sticky for months," according to the 35-page complaint.
Moore advertises the water-based paint "as a zero-VOC ('Volatile Organic Compound') paint that is 'virtually odorless,'" the complaint states.
Moore claims the paint is "inspired by nature," that it is "the greenest paint available," that it "dries to the touch in 30 minutes," and that, as it bears the company's "green promise" logo, it "meet(s) and often exceed(s) the strictest industry standards."
Moore advertises the paint on its website as "the best paint for your little one's room." But lead plaintiff Marlene Sway says Moore has received a slew of consumer complaints about the potent smell of Natura paints.
Citing alleged complaints to Moore and "online postings about the problems with the product," Sway says one consumer wrote, "We painted our entire house almost a year ago, and it is still out gassing. The first few months it smelled like rotting fish, now it is less strong and has a chemical smell to it. To this day, I still exchange the air in the house with strong fans every morning for several hours. I can't get Benjamin Moore to answer my calls."
Another customer wrote: "I am a 9 month pregnant mom and also thought this would be the safe option for the nursery. The smell is much, much stronger than Aura, which I've previously used and loved. Natura is not 'virtually odorless' at all, but smells exactly like regular paint. Since having the room painted we've had to keep its windows open ... and a towel under the door, but whole house still smells like wet paint. It's nauseating. I'm panicked because we have nowhere else to put the baby or his things."
Sway says Moore sent a "Product Replacement" notice to retailers in 2010, and that "Although defendant knew at the time that the product did not perform as advertised, defendant did not inform its retail outlets of that fact. Instead, the
'Product Replacement' notice stated: '"Since the introduction of Natura two years ago, we have made additional changes to further improve its performance. To this [sic], Benjamin Moore & Co. will replace the older version products, skus and batches.' The notice went on to instruct retail outlets to check for certain batch codes, and to contact defendant to make arrangements to have those batches 'exchanged.' Defendant concluded the notice by stating: 'While I know this is an inconvenience, this is an opportunity to replace your older stock with new.' Because defendant crafted the notice to omit any reference to any problem with the product, a retailer receiving the notice may or may not have accepted defendant's invitation to replace the older, defective product with replacement product. Furthermore, defendant did not seek any information from its retailers about customers who had already purchased the product, nor did defendant instruct its retailers to make any effort to contact those customers to inform them of the problem or to remedy the harm those customers were suffering as a result of the problem. Defendant did not issue a consumer recall of the product nor did defendant take any steps at all to notify consumers of the problems with the product."
Sway says Moore's notice to retailers did not identify all of the defective batches, and that "there were additional batches of defective Product that such retailers were not allowed to replace. Thus, even retailers who replaced the product that was identified in the Product Replacement notice continued selling defective product to consumers, and defendant failed to ensure that the product was not still being sold to unsuspecting consumers."
Sway says that had she and the class known that Natura "would render the rooms in which the product was used virtually uninhabitable," they never would have bought it.
She seeks an injunction, restitution, disgorgement of ill-gotten gains, and class damages for consumer fraud, breach of express warranty, breach of implied warranty, and violations of the business law.
Sway's lead counsel is Carl Beckwith, with Beckwith & Wolf, of Closter, N.J.
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