Background

The Federal Trade Commission’s (FTC’s) Guides for the Use of Environmental Marketing Claims (the Green Guides) outline general principles that apply to all environmental marketing claims and help marketers avoid making environmental marketing claims that are unfair or deceptive under Section 5 of the Federal Trade Commission Act (the FTC Act).

As environmental and green marketing have proliferated, the FTC in October 2010 proposed changes to the Green Guides, which had last been updated in 1998. Nearly two years later, the FTC issued its revised Green Guides, on October 1, 2012. See http://www.ftc.gov/opa/2012/10/greenguides.shtm.

Companies should review claims that could be covered by the Green Guides as the FTC can take action under the FTC Act if a marketer makes an environmental claim inconsistent with the Green Guides.

Substantiation and General Principles

Marketers must ensure that all reasonable interpretations of their claims are truthful, not misleading, and supported by a reasonable basis before they make the claims. A reasonable basis often requires competent and reliable scientific evidence. Qualifications and disclosures should be clear, prominent, and understandable. An environmental marketing claim should not overstate, directly or by implication, an environmental attribute or benefit.

General Environmental Benefit Claims

Marketers should not make broad, unqualified claims like “green,” “environmentally friendly” or “eco-friendly.” Broad claims are difficult, if not impossible, to substantiate. Marketers should qualify general claims with specific environmental benefits and qualifications for any claim should be clear, prominent, and specific. When a marketer qualifies a general claim with a specific benefit, consumers understand the benefit to be significant and marketers should not highlight small or unimportant benefits. If a qualified general claim conveys that a product has an overall environmental benefit because of a specific attribute, marketers should analyze the trade-offs resulting from the attribute to prove the claim.

Other Revised Content of the Green Guides

In addition to the foregoing, the Green Guides revised the following content: (1) degradable claims, (2) compostable claims, (3) recyclable claims, (4) recycled content claims, (5) source reduction claims, (6) refillable claims and (7) ozone-safe and ozone-friendly claims.

New Sections Added to the Green Guides

The Green Guides also add the following new sections: (1) certifications and seals of approval, (2) carbon offsets, (3) free-of claims, (4) non-toxic claims, (5) renewable energy claims and (6) renewable materials claims. It is important to note that certifications and seals may be considered endorsements that are covered by the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising and marketers may need to disclose a “material connection” that might affect the weight or credibility of an endorsement. See http://www.ftc.gov/opa/2009/10/endortest.shtm. Marketers should not use environmental certifications or seals that do not clearly convey the basis for the certification because these seals or certifications are likely to convey general environmental benefits.

Terms Not Covered by the Green Guides

The Green Guides do not address use of the terms “sustainable,” “natural,” and “organic.”

Enforcement

The FTC can take action under the FTC Act if a marketer makes an environmental claim inconsistent with the Green Guides and must prove that the challenged act or practice is unfair or deceptive in violation of Section 5 of the FTC Act. While the Green Guides do not preempt federal, state, or local laws, compliance with those laws will not necessarily preclude FTC enforcement action under the FTC Act. Finally, the Green Guides are not agency rules or regulations.

Action Item

Companies should review claims that could be covered by the Green Guides. This review could involve reviewing the website of a company or a third-party (for example, a social media website). This review also could be implicated when a website is reviewed for broader compliance with laws, guidance and other requirements.