In a World Measured in Hundredths, Energy Star Labeling May Present Risks

Paul R. Gary
June 28, 2014
COLUMN : Legal

Residential window and door products often operate in a world of hundredths: hundredths of an inch or hundredths of a degree. Products are certified, built and sold based on these measures and representations with respect to them. There might be risk when representations are made that fenestration products as installed provide unwavering compliance with all such finite measurements, and the legal exposure for getting it wrong can be regrettable.

 
Consider the coming Energy Star 6.0 criteria. The Environmental Protection Agency’s requirements are based on methodologies and measurements generated from NFRC standards. And whether U-value, SHGC or VT, the borderline in testing between what does or does not comply with Energy Star 6.0 is measured in mere hundredths. In fact, the EPA says that “every Energy Star qualified window, door, and skylight is independently certified to perform at levels that meet or exceed energy efficiency guidelines set by the U.S. EPA.” There is no stated exception to absolute conformity, every time. That statement should be digested by everyone in our industry.
 
Manufacturers can control the elements that help product designs achieve performance under NFRC test standards that comply with the EPA’s criteria. But components have tolerances, as do manufacturing processes. Moreover, in the field, windows and doors are small parts of larger assemblies, and their performance is often dictated by circumstances beyond the manufacturer’s control. An unequivocal statement that every installed product meets energy performance measured to the hundredths of a degree should be unsettling. Though EPA is the one making the suggestion, manufacturers as the “sellers” can be responsible for the message provided to the buyer. A careful review of the overall treatment of product representations is required. This includes a focus on labeling products with the Energy Star label without addressing any aspect of the overall context.
 
This is not a slight to Energy Star, NFRC, or the good work they do for the industry. But today’s legal challenges can be based on labels and the representations in them. Sure, it’s a different setting, but in a case recently argued before the U.S. Supreme Court, Pom Wonderful sued Coca-Cola, claiming it was hurting Pom Wonderful’s business because a label of pomegranate juice had a picture of a pomegranate on it. The label only had a very small disclosure that less than 0.3 percent of the bottle was actual pomegranate juice. Much like Energy Star, the juice label had to, and did, meet certain levels of federal oversight. Yet despite complying with those criteria, one manufacturer sued for the way the other represented its product, and the legal issues involved made it to the Supreme Court. It does not take too much imagination to foresee a consumer claim, or even a similar “market competition” claim among window and door companies.
 
A suit contesting a manufacturer’s representations of design pressure, air leakage or U-value compliance for specific climate zones could present a serious risk based on allegations of failure to meet standards that can only be measured in the hundredths. But such a claim is also not necessarily limited to one project or specific location. The scope of risk in labeling issues could potentially address multiple lines of product and years of production. Taken together, these allegations based on small incremental values can present large risk.
 

What Can be Done?

If labeling with measurements in the hundredths can be problematic, what can be done? Perhaps we need to look at another federal requirement involving a different popular measurement: miles per gallon. “Your mileage may vary” is just one of the legal disclaimers that find their way into advertising by automakers. The easily arguable impact of that statement is to imply that where someone uses a car, the type of gas they use, and how they drive all affect their particular gas mileage. But beyond that, a minor deviation in engine performance from the specification should not be the basis for a “lemon” claim—so, too, with other products, including windows and doors.
 
Perhaps, as experts contend, the world of access to information has essentially become “flat.” Regardless, it’s indisputable that the consumer—both commercial and individual, in all venues—is coming to expect a transparent disclosure of pertinent information with regard to buying choices. There is no sustainable reason to avoid sharing the reality of a potential for minor product variation in mass production and performance variables due to installation—yes even with respect to fenestration products.

 

Paul R. Gary is the prinicipal of The Gary Law Group, a law firm based in Portland, Ore., emphasizing legal issues facing manufacturers of windows and doors. He welcomes feedback about articles published in Window & Door and can be reached at 503/227-8424 or paul@prgarylaw.com.