On October 6, 2010 the Federal Trade Commission published the long-anticipated proposed revisions to the 1998 "Green Guides" to help marketers avoid making misleading environmental marketing and advertising claims.
The changes to the "Green Guides" include both updated guidance for existing Green Guides content, as well as new guidance for marketers' use of product certifications and seals of approval, "renewable energy" claims, "renewable materials" claims, and "carbon offset" claims. Following are excerpts from the FTC's proposed Green Guides changes:
Proposed Revisions to the Guides
The revised Guides caution marketers against making blanket and generalized claims that a product is "environmentally friendly" or "eco-friendly" because the FTC's consumer perception study confirms that such claims are likely to suggest that the product has specific and far-reaching environmental benefits.
The proposed Guides also caution marketers not to use unqualified certifications or seals of approval if they do not specify the basis for the certification. The Guides more clearly state that unqualified product certifications and seals of approval likely constitute general environmental benefit claims, and they advise marketers that the qualifications they apply to certifications or seals should be clear, prominent, and specific.
Next, the proposed revised Guides advise marketers how consumers are likely to understand certain environmental claims, such as "degradable," "compostable," or "free of" a particular substance. For example, if a marketer claims that a product that is thrown in the trash is "degradable," it should decompose in a "reasonably short period of time" – no more than one year.
New Guidance Proposed
The proposed changes update the Guides by giving insight into claims that are not addressed in the current Guides, such as claims about the use of "renewable materials" and "renewable energy." The Guides advise marketers to provide specific information about the materials and energy used. Further, marketers should not make unqualified renewable energy claims if the power used to manufacture any part of the product was derived from fossil fuels.
The proposed revised Guides also provide new advice about carbon offset claims. The Guides advise marketers to disclose if the emission reductions that are being offset by a consumer's purchase will not occur within two years. They also advise marketers to avoid advertising an offset if the activity that produces the offset is already required by law.
Finally, either because the FTC lacks a sufficient basis to provide meaningful guidance or because the FTC wants to avoid proposing guidance that duplicates rules or guidance of other agencies, the proposed Guides do not address use of the terms "sustainable," "natural," and "organic." Organic claims made for textiles and other products derived from agricultural products are currently covered by the U.S. Department of Agriculture's National Organic Program.
The FTC is seeking public comments on the proposed changes until December 10, 2010, after which it will decide which changes to make final. We work closely with advertisers and marketers in connection with green claims. Please let us know if we can be of further assistance.
The proposed revised Green Guides can be found on the FTC's website at http://www.ftc.gov/os/fedreg/2010/october/101006greenguidesfrn.pdf., and a summary of the proposed revised Guides can be found at http://www.ftc.gov/os/2010/10/101006greenguidesproposal.pdf.
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