By Ilana R. Morady and Eric E. Boyd
On October 1, 2012, the Federal Trade Commission (FTC) published final changes to its Guides for the Use of Environmental Marketing Claims, commonly known as the “Green Guides.” The FTC first issued the Green Guides in 1992 to help marketers ensure that claims they make are true and substantiated. The guidance they provide includes: 1) general principles that apply to all environmental marketing claims; 2) how consumers are likely to interpret particular claims and how marketers can substantiate these claims; and 3) how marketers can qualify their claims to avoid deceiving consumers. The agency revised the Green Guides in 1996 and 1998, and in 2010 it proposed the current revisions.
The updated Green Guides address emerging environmental claims, namely renewable material claims, renewable energy claims, and carbon-offset claims. They also clarify and supplement existing guidance on general environmental benefit claims, ozone-safe, compostable, degradable, recyclable, recycled content, source reduction, refillable, and free-of/non-toxic claims, and the use of certifications and seals of approval. Although some public comments requested that the agency add a section to the revised Green Guides discussing organic and natural claims, the FTC declined because the Food and Drug Administration (FDA) and United States Department of Agriculture (USDA) also regulate the use of these terms.
The Green Guides are published at 16 CFR Part 260. As agency guidance, they do not have the force and effect of law and are not independently enforceable. The FTC can, however, take action under Section 5 of FTC Act, which prohibits unfair or deceptive practices, if a marketer makes an environmental claim inconsistent with the Green Guides. Seyfarth Shaw’s Green Marketing Compliance Team regularly advises clients on strategies for marketing the environmental and health benefits of their products while avoiding legal pitfalls. For further information on how the Green Marketing Compliance Team can help your company, please contact us.