This month, the Federal Trade Commission (FTC) issued proposed modifications to update its so-called "Green Guides"-i.e., Guides for the Use of Environmental Marketing Claims found in 16 C.F.R. Part 260. "Green" marketing claims have exploded in the marketplace since these rules were last revised in 1998. As consumers have become increasingly environmentally conscious over the past decade, manufacturers and marketers have exploited environmental marketing claims as a means for increasing sales. However, FTC's revisions to the proposed guides direct that marketers should not make unqualified general environmental benefit claims (such as "green" or "eco-friendly") since these claims are likely to deceive consumers and are typically impossible to substantiate (e.g., FTC would require a marketer making such a claim to be able to substantiate all express or implied claims that may be derived from the broader environmental claim). FTC's revisions provide that marketers qualify and limit these broader "green," "eco-friendly" or similar claims by identifying a specific environmental benefit. The proposed revisions also include that marketers not claim that a product is degradable unless it will completely decompose and return to nature within one year of disposal. FTC proposes that marketers not make unqualified degradable claims or products destined for landfills, incinerators or recycling facilities, since decomposition will not occur within one year. In addition, the agency's modifications clarify that claims that a product is "free-of" of a substance may be deceptive where the product contains substances that pose the same or similar risk or where the substance is not one historically associated with the product category. With that being said, the agency's proposal would permit "free-of" claims in certain circumstances where the product contains a negligible quantity of the substance (although we note that state consumer deception laws may take a more restrictive approach).
The proposed modifications focus on many other areas, including use of certifications and seals of approval in marketing materials and recyclable, compostable, non-toxic and ozone-friendly claims. The proposal also amends the guides to include rules for claims regarding use of renewable materials, renewable energy and carbon offsets. FTC is accepting comments on its proposal through December 10, and more information on the agency's proposed modifications can be found on FTC's dedicated "green" website. Manufacturers and marketers should anticipate FTC finalizing some form of these revisions to the Green Guides and begin the process of evaluating and updating current marketing claims and materials in light of the direction FTC is moving.