By Ilana R. Morady, Meagan Newman, and Craig B. Simonsen

Last week the Federal Trade Commission (FTC) sent warning letters to providers of environmental certification seals, and to businesses using those seals, alerting them to the Commission’s concerns that the seals “could be considered deceptive and may not comply with the FTC’s environmental marketing guidelines.”

In the FTC’s news release, Jessica Rich, Director of the FTC’s Bureau of Consumer Protection, indicated that “environmental seals and certifications matter to people who want to shop green.” “But if the seals’ claims are broader than the products’ benefits, they can deceive people.”

In 2012, the FTC published its Guides for the Use of Environmental Marketing Claims (Green Guides). The FTC had first issued the Green Guides in 1992 to help marketers ensure that claims they made were true and substantiated. The Green Guides provide: 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 FTC had revised the Green Guides in 1996 and 1998, and in 2010 it proposed the current revisions.

The Green Guides address 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. While during the rulemaking some public comments had requested that the FTC add a section to the 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 those terms.

The Green Guides were published at 16 CFR Part 260. As guidance documents 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 the FTC Act, which prohibits unfair or deceptive practices, if a marketer makes an environmental claim inconsistent with the Green Guides.

Green seals and certifications, if not used clearly, can inadvertently deceive consumers by conveying something about a product that is not true. The FTC’s news release about the warning letters this week explains that unqualified general environmental benefit claims such as “green” and “eco-friendly” convey a “broad range of attributes, and that almost no product could have them all.” The Green Guides require that green claims be properly qualified, and provide some examples of how to create a seal or certificate to avoid deceiving consumers.

With this new round of ongoing enforcement proceedings and warnings relating to the Green Guides (see our previous blog about earlier FTC enforcement activities), manufacturers, distributors, and sellers of products should look closely at their marketing materials and “green” claims. Make sure now that your claims are substantiated, before the FTC comes calling.