Antitrust Law Daily Wrap Up, ADVERTISING—E.D. Mo.: Sherwin-Williams cannot paint over competitor’s false labeling claims, (Aug 6, 2026)

By Jody Coultas, J.D.

The paint seller must face claims that it misled the public about the efficacy of its fireproofing paint.

The federal district court in St. Louis, Missouri declined to dismiss a Lanham Act suit filed by paint manufacturer Carboline Global Inc. against rival The Sherwin-Williams Company for allegedly misrepresenting its fireproofing paint product. Both companies sell intumescent coating, which protects steel from fire damage. Carboline alleged that Sherwin-Williams claimed its product provided the same life-saving protection as rival products but with less material, labor, and cost. The court declined to dismiss the suit, rejecting Sherwin-Williams’ argument that the claims were either nonactionable puffer or actually true (Carboline Global Inc. v. The Sherwin-Williams Co., No. 4:25-cv-01315-MAL (E.D. Mo. Aug. 4, 2026)).

Carboline and Sherwin-Williams both produce a fireproofing paint product, known as intumescent coating, which expands in heat to protect steel from fire damage. Carboline’s product is known as Thermo-LagE100, and Sherwin-Williams’s product is known as Firetex FX9502. Carboline’s product was an established leader in the intumescent coating industry, until Sherwin-Williams took the lead when it began marketing for FX9502 in 2021.

From 2021 to 2024, Sherwin-Williams claimed that Firetex FX9502 could provide the same life-saving protection as rival products but with less material, labor, and cost. To support its claims, Sherwin-Williams relied on third-party testing. Sherwin-Williams used this test data in competitive bids for fireproofing, released case studies showing lower thickness requirements, released press releases touting FX9502’s efficiencies, produced a YouTube video, and published on an industry website information touting FX9502’s lower dry film thickness. Sherwin-Williams also used data to generate Firetex Design Estimator (FDE) schedules—which are documents produced for a specific project that reflect the precise dry-film thickness and material quantities needed for each steel member.

In 2024, Sherwin-Williams released new test results for FX9502’s required thickness showing that FX9502 required far more thickness to achieve sufficient fire protection for two hours than Sherwin-Williams had been promising for the past three years.

Carboline alleged that Sherwin-Williams knew or should have known all along that the results were false and ignored the falsity because of the marketplace advantage and filed suit under the Lanham Act.

Sherwin-Williams moved to dismiss, arguing that: (1) it is not liable for the test results from the third-party testing company and that its data sheets did not contain false information. Further, Sherwin-Williams argued that the advertising at issue was either not commercial speech, non-actionable puffery, and not misleading.

Misleading advertising. The claim that FX5902 required “lower installed thickness compared to other coatings”—which would allow consumers to showcase the steel’s attractiveness, to apply and cure the paint faster, and to “significantly lower costs” was misleading, according to the court. The statement suggested that the requisite thickness level was not just a little less thick, but significantly less thick than comparable products. Also, the claim was even more misleading when discussed in conjunction with the third-party study. If a potential consumer wanted to estimate how significant the cost savings would be, she would need to look no further than the study, which was public and relied on by Sherwin-Williams for its claims. Carboline alleged facts indicating that the advertising the advertising conveyed the implied message and thereby deceived a significant portion of consumers, as required. Finally, Carboline sufficiently alleged that it lost numerous potential clients and hundreds of millions of dollars in lost sales, and that those customers will now need to have additional coats of Sherwin-Williams FX9502 added to their buildings to prevent fire hazard. To the extent Sherwin-Williams argued that the statements regarding thickness were true because Intertek said they were true, this did not make the statements any less misleading.

Puffery. The court found that the promotional statements at issue were not puffery. Puffery is either exaggerated statements of bluster or boast upon which no reasonable consumer would rely or vague or highly subjective claims of product superiority. The advertising was not an exaggerated statement that no reasonable consumer would rely. It was clear and straight forward. Also, the advertising not vague or highly subjective. “Lower installed thickness,” “significantly lower costs,” and applying and curing the paint faster are all measurable.

The Case is No. 4:25-cv-01315-MAL.

Judge: Lanahan, M.

Attorneys: Cathleen Aubuchon (Shook Hardy and Bacon LLP) for Carboline Global Inc. James F. Bennett (Dowd Bennett LLP) for The Sherwin-Williams Co.

Companies: Carboline Global Inc.; The Sherwin-Williams Co.

Cases: Advertising MissouriNews