After a multi-year process and numerous consumer surveys, the U.S. Federal Trade Commission (FTC) recently approved revisions to its guidelines governing advertising for environmental and energy claims, better known as the “Green Guides.”
Why the FTC? The FTC has authority to seek penalties for deceptive advertising and marketing under section 5 of the FTC Act, and so offers the Green Guides to help define what is fair and unfair marketing. The Green Guides have not been updated for some time.
In addition to updating the Green Guides, the FTC also has added several new sections on the use of carbon offsets, “green” certifications and seals, and renewable energy and renewable materials claims. Of particular concern to the FTC are statements that are general, such as “biodegradable” or “recyclable.” Broad, unqualified general environmental benefit claims like “green,” “eco-friendly,” or “environmentally friendly” are not allowed. These types of claims are difficult, if not impossible, for consumers or others to substantiate. The Green Guides goes into detail on how certain terms may be used, or misused.
The FTC staff announced the addition of six new sections to the Guides:
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Environmental certifications and seals of approval;
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Carbon offset claims;
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“Free-of” claims;
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“Non-toxic” claims;
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“Made with renewable energy” claims; and
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“Made with renewable materials” claims.
In some cases, a manufacturer may have to provide competent and reliable scientific evidence that the product is safe for both people and the environment to make permissible environmental claims.
Unfortunately, the Green Guides are not simple, and environmental claims that often seem straightforward run the risk of crossing the FTC’s line, which could lead to FTC enforcement action or consumer litigation. In addition to the Green Guides, there are other laws that penalize improper environmental claims, such as the laws administered by the Food and Drug Administration and EPA (e.g., the pesticide law for anti-microbial claims).
The Green Guides will be published in the Federal Register and codified in the Code of Federal Regulations. If you would like a copy of the Green Guides or have questions, please call or email Ken Gray (kgray@pierceatwood.com or 207-791-1212) or Matt Manahan (mmanahan@pierceatwood.com or 207-791-1189).
