The public comment period has begun for the Federal Trade Commission (FTC) proposed revisions to the “Green Guides,” the existing advisory guidelines used to help marketers avoid making environmental claims that would mislead consumers. The FTC’s Guides are not binding regulations, but give notice to advertisers about the standards the FTC will use for enforcing the Federal Trade Commission Act.
General Environmental Benefit Claims. The proposed revisions suggest avoiding all “unqualified general environmental benefit claims” because they are often impossible to substantiate unless one can prove all express and implied claims for the product.
Certifications and Seals of Approval. The proposed revisions make clear that certifications and seals of approval are endorsements covered by the FTC’s amended Endorsement Guides. Advertisers should use clear, conspicuous language limiting the claim to specific attribute(s) for which they have been certified because an unqualified endorsement could be as broad as the general claims addressed above. Third-party certification does not eliminate an advertiser’s obligation to have substantiation for all claims.
Degradability Claims. For solid waste products OTHER THAN those destined for landfills, incinerators, or recycling facilities, the revisions clarify that decomposition should occur within a one-year time limit (after customary disposal), rather than the current “reasonably short period of time.”
Compostability Claims. Under the revisions, an unqualified compostability claim would be appropriate only where a product or package will break down in approximately the same time as the materials with which it is composted.
Recyclability Claims. Under the proposed revisions, a marketer can make an unqualified claim that an item is recyclable if a substantial majority of consumers or communities have access to recycling facilities that are able/willing to accept the particular good as a recycled item. The advertiser should qualify any recyclable claims if a smaller percentage of consumers or communities have access to recycling facilities that accept the advertised item.
Non-Toxicity Claims. The revisions would provide that even if true, claims that an item is “free of” a substance may be deceptive if the item has substances that pose the same or similar environmental risk as the substance not present or the substance has never been associated with the product category. A “free-of” claim may be appropriate even where an item contains a de minimis amount of a substance. However, the FTC suggests that advertisers use a case-by-case analysis to determine whether even a de minimis amount of a particular substance would be consequential to consumers, and therefore not fit for a “free-of” claim.
The proposed revisions also would offer guidance on the use of three additional “Green” terms.
Claims that a Product is Made with Renewable Materials. The proposed guidance would advise marketers to qualify a “made with renewable materials” claim with specific information about the material(s) used and urge that marketers should qualify renewable materials claims if the item is not made entirely with renewable materials (excluding minor, incidental components).
Renewable Energy Claims. The proposed revisions caution advertisers to not make unqualified renewable energy claims if the power used to manufacture any part of the product was derived from fossil fuels, to qualify claims by specifying the source of renewable energy used (e.g. wind or solar) and to qualify claims if less than all of the significant manufacturing processes involved in making the product/package were powered with renewable energy or conventional energy offset by renewable energy certificates (hereafter “RECs”). The proposed revisions further suggest that marketers that generate renewable energy (e.g. by using wind power), but sell RECs for all of the renewable energy they generate, should not represent that they use renewable energy.
Carbon Offset Claims. The revisions propose several qualifications and requirements relating to carbon offset claims including that marketers making carbon offset claims have competent and reliable scientific evidence to support their claims, including necessary accounting methods to ensure they are properly quantifying emission reductions, and are not selling those reductions more than once; advertisers should disclose if the offset purchase funds emission reductions that will not occur for at least two years; and advertisers should not advertise a carbon offset if the activity that forms the basis of the offset is already required by law.
Public comments on the proposed changes may be submitted to the FTC until December 10, 2010, after which time the FTC will decide which changes to make final.