October 9, 2012
On October 1, 2012, the Federal Trade Commission announced its adoption of the final revisions to the Guides for the Use of Environmental Marketing Claims (“Green Guides”), which may drastically affect the touting of products and services in terms of their environmental friendliness. Eagerly anticipated by many in the advertising industry—the Green Guides had not been updated since 1998, when environmental marketing claims were not nearly as ubiquitous as they are today—the revised Guides include amendments to previous sections as well as entirely new sections on topics such as carbon offsets and renewable energy claims.
While marketing folks would be wise to study the modified Green Guides in their entirety, some of the more notable revisions include:
The use of unqualified claims of general environmental benefit should be discontinued. The FTC has determined that phrases such as “eco-friendly,” “green,” “eco-smart,” and “environmentally friendly” are capable of too many interpretations, difficult to substantiate, and, therefore, deceptive if not qualified in some manner. Significantly, however, the FTC has affirmatively declined to provide any guidance on the use of words like “sustainable,” “natural,” and “organic,” preferring to yield to other agencies’ assistance in interpreting those buzz words.
It is misleading to promote a product as degradable in some fashion, without qualification, if there exists no competent, reliable scientific evidence that the entire item does not break down in a reasonably short amount of time. The FTC goes further to indicate that a “reasonably short period of time” is within one year of customary disposal.
The use of a certification or seal of approval from a third-party organization may constitute an endorsement, which may require compliance with another set of FTC guidelines, the FTC Endorsement Guides (16 C.F.R. §§ 255 et seq.).
The deceptiveness of claims as to the recyclability of a product will depend on the availability of suitable recycling programs and collection sites to consumers.
It is important to note that the Green Guides—or any of the FTC’s Guides, for that matter—are not law. They are administrative interpretations of the law. Marketers should heed compliance with them, however, because they are one of the the best indications of how the FTC will enforce the law to stop unfair or deceptive advertising.
The revised Green Guides will soon be found at 16 C.F.R. §§ 260 et seq. The FTC has not yet published them in the Federal Register, so you migh wish to set up a WestClip alert to notify you when they become available. In the FR database, try:
Query: “environmental marketing” “environmental claims”
The Federal Register entry should also include the date on which the new Guides become effective.
To find all discussion on the Green Guides in the Federal Register, including previous versions going back to their original issuance in 1992, run the following search in WestlawNext.
Search: PR(“Federal Trade Commission” F.T.C.) & guide /7 green environment!
Content: Proposed & Adopted Regulations
Jurisdiction: All Federal
If you’re interested in viewing other FTC guides on marketing topics ranging from deceptive pricing and use of the word “free” to advertising of warranties and guarantees, they may be found in Title 16 of the Code of Federal Regulations, Chapter 1, Subchapter B. Consider saving the content page to your Favorites to ensure the various guides are always at your fingertips when you log in to WestlawNext.