FTC's Proposed Revisions to "Green Guides" -- Deadline for Comments December 10, 2010

In October 2010, the FTC issued its proposed revisions to its Guides for the Use of Environmental Marketing Claims, commonly known as the "Green Guides." The proposed revisions come after a lengthy notice and comment period, three public workshops and the agency own consumer perception study FTC now proposes revisions to the Guides and seeks comment on these proposed revisions. Comments must be received by December 10, 2010.

The proposed Guides would supplement the Green Guides that have remained unchanged since the late 1990s. 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 proposed Guides include changes designed to strengthen the FTC's guidance on those marketing claims that are already addressed in the current Guides as well as to provide new guidance on marketing claims that were not common when the Guides were last reviewed.

The revised Guides are the product of a lengthy process. The FTC last revised the Green Guides in 1998. Beginning in November 2007, the FTC sought comment on a number of general issues, including the continuing need for and economic impact of the guides, the effect of the guides on the accuracy of environmental claims. The FTC also held three public workshops and with a private consumer research firm to conduct a study to determine how consumers perceive claims such as "green" and "eco-friendly."

Among the more notable revisions are the following important proposals in the proposed Guides:

1. Consistent with recent enforcement actions both by the FTC and before NAD, marketers should not make unqualified general environmental benefit claims because they are difficult, if not impossible, to substantiate.

2. Qualifications should be clear and prominent, and should limit the claim to a specific benefit. Marketers should ensure the advertisement's context does not imply deceptive environmental claims.

3. Restrictions on certifications and seals of approval, emphasizing that certifications and seals are covered by the FTC's Endorsement Guides, including disclosing material connections between the marketer and certifying organization.

4. Barring unqualified degradable claims for items destined for landfills, incinerators, or recycling facilities because decomposition will not occur within one year. This restriction is independent of whether or not a marketer can show compliance ASTM standards for biodegradation or other accepted industry standards.

5. Clarifying unqualified compostable claims to mean that a product or package will break down in approximately the same time as the materials with which it is composted.

6. A new section regarding "Free of" and "Non-Toxic" claims expands the current Guides advising that even if true, claims that an item is free-of a substance may be deceptive if: (1) the item has substances that pose the same or similar environmental risk as the substance not present and 2) the substance has never been associated with the product category. Also, under certain circumstances, free-of claims may be appropriate even where an item contains a de minimis amount of a substance. Free-of claims may convey additional environmental claims, including general benefit or comparative superiority claims.

Keep in mind that the Guides, even if accepted, do not have the force of law. However, the Guides are a roadmap to the agency's position on these claims. The agency can challenge under the FTC Act environmental claims that are inconsistent with the guidelines, but it must prove that those claims are unfair or deceptive. Thus, it is critical to marketers making environmental claims to consider the FTC's position in fashioning their advertising and labeling.

Businesses or persons that wish to submit comments must do so by December 10, 2010. The FTC has stressed that comments should be based on qualitative evidence and not simply an expression of dissatisfaction with a particular proposal.

If you require assistance in submitting comments or would like to learn more about our environmental marketing law practice, please contact us.

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