When the FTC released its revised Green Guides last October, the Agency provided detailed guidance on a number of topics but declined to provide guidance on the claim of “sustainability.” In doing so, the Commission noted that its job is not to define terms but rather to help advertisers avoid making claims in a manner that is inconsistent with consumer understanding of those claims. In the case of “sustainable” the Commission found that consumer understanding of the term simply varied too widely for the FTC to provide such guidance. The Commission cautioned, however, that use of the term was still governed by Section 5 and that advertisers should insure that their use of the term in any specific context was consistent with Section 5 and consumer understanding for the advertiser’s specific use of “sustainable.”
Last week the FTC submitted comments to the Marine Stewardship Council on its “Certified Sustainable Seafood” label. To receive the label, a fishery must meet three criteria. First, it must manage its practices so that the fish population is maintained and fishing can continue indefinitely. Second, fishing practices must be conducted so as to minimize the impact on the ecosystem in which the fish live; for example, minimizing the impact on other species that live within the same ecosystem. Or put even more simply, don’t catch sea turtles in your fishing nets. Third, the fishery must effectively manage its practices so as to be able to respond to changes in the fish population or the surrounding ecosystem.
The FTC’s comments essentially confirmed its intent to steer clear of providing specific guidance on sustainability claims – advising that the Council should embrace standards that are scientific, objectively applied and that comport with consumer understanding. Of course, if the FTC is correct and consumers have varied understandings of the term “sustainable” then this creates a potential problem. As many of you know, under Section 5 a claim can be misleading even if only a relatively small percentage of consumers are misled. So, as the Commission itself found, any survey of a general sustainability claim seems likely to find a not insignificant number of consumers who take away an interpretation of the claim different than the one intended by the advertiser. So what’s the solution? One option is to tell consumers what you intend by the use of “sustainable.”
The revised Green Guides also provide amended guidance on the use of seals and certification. In essence, seals and certification should make clear the basis for the certification so as to avoid conveying a potentially misleading claim; for example, one of general environmental benefit. Such information can either accompany the seal or be incorporated into the actual seal name. Referring consumers to online criteria is generally not permitted unless appropriate qualifying language is used and the criteria themselves are extensive.
In the case of the Marine Stewardship certification, the seal contains the term “sustainable” so the basis for the seal is apparently provided. But is it? If consumers, in fact, take away varied interpretations of the use of “sustainable” in the certification, then the actual standards are unlikely to meet the understanding of at least a significant minority of consumers. So here again, the solution would seem to be to provide consumers with the criteria for the use of the term “sustainable.”
Bottom line: just because the FTC hasn’t provided specific guidance on the use of “sustainable,” don’t assume that the claim can’t land you in troubled waters.