On December 14, 2022, the Federal Trade Commission (FTC) announced that it is seeking public comment with respect to proposed revisions and updates to the "Green Guides for the Use of Environmental Claims" ("Green Guides"). According to the press release announcing the request for comment, the FTC stated that it is updating the Green Guides "based on the increasing consumer interest in buying environmentally friendly products." The original Green Guides were issued in 1992 and have been updated periodically, with the last such update completed in 2012. They are intended to "provide guidance on environmental marketing claims, including how consumers are likely to interpret particular claims and how marketers can substantiate these claims to avoid deceiving consumers." The FTC's proposed updates are timely as regulators across various agencies are increasingly scrutinizing a wide array of products to ensure that consumers are not being subjected to "greenwashing."
In the proposal (which can be found here), the FTC indicates that it periodically reviews all of its rules and guides from time to time to "(1) examine their efficacy, costs and benefits; and (2) determine whether to retain, modify, or rescind them." The FTC's issuing release sets forth a series of general questions for which the agency seeks comment, including whether there is an ongoing need for the Green Guides; whether consumers have actually benefitted from the Green Guides; what benefits, if any, the Green Guides have provided to businesses, particularly small businesses; and what modifications should be made to the Green Guides in order to enhance the benefits they provide to both consumers and businesses. Among these general questions, the FTC seeks input on "whether the Commission should consider rulemaking to establish independently enforceable requirements related to unfair and deceptive environmental claims."
The issuing release also includes a request for comment regarding several specific provisions of the existing guidelines "that have generated increased attention and interest over the last several years." These issues include guidance related to carbon offsets and climate change; degradable packaging claims; whether a product is ozone-safe/ozone-friendly; various aspects of the Green Guides relating to whether a product is recyclable or includes "recyclable content"; and how consumers interpret claims that a product is "sustainable."
The FTC's decision to publish the request for comment was approved unanimously and the comment period will remain open for 60 days from the date on which such request was published in the Federal Register (February 21, 2023). Companies making environmental claims should consider how the Green Guides have impacted their practices and consider carefully how changes to the Green Guides may impact their business. We will continue to monitor relevant developments.
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