The Federal Trade Commission (FTC) recently unveiled long-awaited proposed revisions to its Guides for the Use of Environmental Marketing Claims, known as the “Green Guides,” which were last updated in 1998 (available at guidesfrn.pdf). The Green Guides help marketers comply with basic advertising law principles when making “green” advertising claims by ensuring claims are true and substantiated. As part of its revision effort, the FTC relied on public workshops, comments and a study of consumers’ perceptions of environmental claims. Moreover, the FTC has requested public comments on the proposed revisions, through December 10, 2010, after which time the FTC will decide what changes to make final.

We previously addressed the revised Green Guides’ position on general environmental benefit claims (see Degradable Claims Under FTCs Proposed Revised Green Guides) and degradability claims (see FTCs Proposed Revised Green Guides Warn Against General Green Claims). We now turn to “Free-of” and “Non-Toxic” claims.

When is a Product “Free-of” a Substance?

Marketers can always substantiate “free-of” claims by confirming that their products are, in fact, completely free of the specified substance. However, a more difficult issue arises when products have background levels or trace amounts of a substance. The revised Green Guides propose that “free-of” claims still may be appropriate where a product contains a de minimis amount of a substance that would be inconsequential to consumers. However, the determination of what constitutes de minimis depends on the substance at issue, and therefore requires a case-by-case analysis to determine the relevance of the substance to the consumer. In some cases, consumers may view the presence of even trace amounts of a substance as material. For example, trace amounts of a substance such as mercury, which is highly toxic to humans, likely would be relevant to consumers.

The revised Green Guides further underscore the traditional advertising law concepts by stressing that a literally true “free-of” claim may nevertheless be considered deceptive if the consumer receives the wrong impression from the claim. Specifically, the Green Guides speak to two separate instances where a literally true claim could nevertheless be considered deceptive – (a) if the product contains substances that pose the same or similar environmental risk as the substance advertised as not present; and (b) if the substance has never been associated with the product category, as a “free-of” claim in that instance may deceive consumers by falsely suggesting that competing products do contain the substance or that the marketer has improved the product by removing the substance. The Green Guides note that marketers can minimize the risk of an allegation of deception when using a “free-of” claim if they clarify that the entire product category is free of the substance.

The FTC also found that “free-of” claims may convey to consumers that the product has broad environmental benefits or is environmentally superior to competing products. Thus, a marketer who makes a “free-of” claim that reasonable consumers would interpret to convey additional environmental claims must have substantiation for all of those claims. Marketers should also avoid “free-of” claims that reasonable consumers could interpret as an unqualified general environmental claim.

Qualifying “Non-toxic” Claims

As for using the phrase “non-toxic,” it is not necessarily clear whether the product is “non-toxic” for humans or “non-toxic” to the environment. It is important, advise the Green Guides, to qualify what is “non-toxic” about the product to avoid deception. Marketers should also use caution when relying on regulatory standards as substantiation for “non-toxic” claims. The FTC’s research on consumer attitudes and understandings showed that some regulatory thresholds allow the inclusion of moderately to highly toxic substances in products that, nevertheless, do not meet consumer expectations that a product is non-toxic for both humans and the environment. Therefore, marketers should examine the scope and purpose of the regulatory standard to ensure that it substantiates a “non-toxic” claim in light of consumer expectations.

Under the proposed, revised Green Guides, marketers should give considerable thought when considering “free-of” and “non-toxic” claims, and limit the use of such terms only for instances where they have appropriate substantiation.