While the Guides for the Use of Environmental Marketing Claims (Green Guides), are not enforceable law, they do indicate how the FTC will apply Section 5 of the FTC Act, which prohibits unfair and deceptive acts or practices, to express or implied environmental marketing claims.
The updates to the existing guides focus on nine key areas:
• General environmental benefit claims. Marketers should not make unqualified general environmental benefit claims. Marketers can qualify such claims so long as the qualifications are clear and prominent and limited to a specific benefit, and so long as the context does not imply a broader, deceptive environmental claim.
• Certifications and seals of approval. The use of an unqualified environmental certification or seal conveys a general environmental claim and, therefore, should not be used. Furthermore, the use of any seal constitutes an endorsement and should meet the criteria provided in the FTC's newly released Endorsement and Testimonial Guides.
• Degradable claims. Unqualified degradable claims should only be made where solid waste products are able to undergo complete decomposition in no more than one year after customary disposal.
• Compostable claims. A product or package must break down in a home compost or available compost facility in the same time as the materials with which it is composted in order for marketers to make unqualified compostable claims.
• Recyclable claims. The proposed changes focus on when marketers should qualify claims where there is limited availability of recycling programs.
• Free-of/non-toxic claims. A claim of “free-of” could still be deceptive, even if true, if the item has substances that pose similar environmental risk or the substance not present has never been associated with the product category.
• Renewable materials. Claims should be qualified with specific information detailing the material, such as how it is sourced and why it is renewable.
• Renewable energy. Claims should not be unqualified if any power used in the manufacturing process was derived from fossil fuels.
• Carbon offsets. Marketers should support their carbon-offset claims with reliable and competent scientific evidence, including the use of accounting methods, to ensure that emission reductions are properly quantified and not sold more than once. Marketers are further advised that they should disclose if the offset purchased will fund emission reductions that will not occur within two years.
Notably, the proposed guides do not address the use of the terms “sustainable,” “natural,” and “organic,” either because the FTC believes it currently lacks sufficient basis to provide guidance or because it wishes to avoid guidance that would duplicate guidance of other agencies. Stay tuned to see if there is increased future regulation regarding these terms.
The FTC is accepting comments on the proposed Green Guides until December 10, 2010. Marketers affected by these guides, along with their PR firms, should use this comment period wisely. The new proposed guides, coupled with the FTC's recently enacted new Endorsement and Testimonial Guidelines, reflect a likelihood of increased enforcement activity.
Michael Lasky is a senior partner at the law firm of Davis & Gilbert LLP, where he heads the PR practice group and co-chairs the litigation department. He can be reached at mlasky@dglaw.com.
