In what appears to be an expanding effort, the Federal Trade Commission has launched a series of non-public investigations against select window manufacturers and their contractors.

The investigations focus on the use of energy saving claims and pledges. In reality, most energy pledges and performance promises in the industry have long been without factual support. Marketing a window as “saving 35% off your heating and cooling bills” is difficult to back up since a home’s heating and cooling costs are rarely broken out in a utility bill.

The problem stems from a decades-long practice of “one-upping” competitors’ claims regarding energy savings or relying on advice from consultants more concerned with lead generation than with understanding the legal intricacies of advertising. Don’t expect your marketing agency to assist on this either, and stop sending out materials or using pricing structures without first making sure they are backed up legally.

Marketing and selling with outdated practices will land you on the wrong side of an attorney general investigation or in a class action lawsuit.

If manufacturers and contractors want to be able to grow their business, and stay safe while they do it, they need to understand that the industry is no longer stuck in the 1970s. And if you don’t want your marketing materials reviewed by a jury or government agency, you should review them yourself while you still can.

—D.S. Berenson is the Washington, D.C., managing partner of Johanson Berenson LLP, specializing in the home improvement industry. 703.759.1055,

This article is for informational purposes only and should not be construed as legal advice.