Introduction
FTC proposal
Request for comment


Introduction

On 14 December 2022, the Federal Trade Commission (FTC) announced that it was seeking public comment with respect to proposed revisions and updates to the Green Guides for the Use of Environmental Claims (the Green Guides). According to the press release announcing the request for comments, 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 update 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 scrutinising a wide array of products to ensure that consumers are not being subjected to "greenwashing".

FTC proposal

In the proposal, the FTC indicates that it periodically reviews all of its rules and guides to "(1) examine their efficacy, costs and benefits; and (2) determine whether to retain, modify, or rescind them." The FTC's issuing release raises a series of general questions that the agency would like comments on, 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.

As well as 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".

Request for comment

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 and/or 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 21 February 2023 – the date the request will be published in the Federal Register. Companies making environmental claims should consider how the Green Guides have impacted their practices and how changes to the Green Guides may impact their business going forwards. Relevant developments will be monitored.

For further information on this topic please contact Kenneth J Markowitz, Stacey H Mitchell, Corey W Roush or Charles Edward Smith at Akin Gump Strauss Hauer & Feld LLP by telephone (+1 202 887 4000) or email ([email protected], [email protected], [email protected] or [email protected]). The Akin Gump Strauss Hauer & Feld LLP website can be accessed at www.akingump.com.