Over the past few years, environmental, social and governance (ESG) issues have moved to the center of American discourse. Late last year, the Federal Trade Commission (FTC) joined the conversation when it published a Notice soliciting public comment on proposed updates to its Guides for the Use of Environmental Marketing Claims, colloquially known as the “Green Guides.”

Last revised over a decade ago, the Green Guides are intended to assist advertisers in avoiding unfair or deceptive environmental marketing claims. Since the Green Guides were last updated in 2012, the landscape of environmental marketing claims has matured. Companies—often influenced by the ESG movement—now regularly claim their products and services are environmentally friendly and/or environmentally conscious. These claims are often made in manners the current version of the Green Guides does not address.

The proposed updates to the Green Guides seek to change that. The FTC has requested comments on whether to expand the guides to include additional guidance on claims related to hot-button issues such as climate change, carbon offsets, and energy and efficiency. The FTC also requests comment on updates to the definitions of the terms “recyclable,” “recycled content,” “degradable” and “compostable” to make them more in tune with contemporary use. The proposal also seeks comment on defining the term “sustainability,” a term that is not currently clearly defined.

While the Green Guides are currently just that—non-legally binding guidelines—one of the FTC’s comment requests asks whether the Green Guides should be codified as federal regulations, carrying the force of law. Even without regulatory codification, courts and regulators look to the Green Guides to inform whether an advertiser’s environmental claim is misleading, and many states have used the Green Guides as bases to enact their own laws on “green” advertising. Codifying the Green Guides would provide another quiver in the arrow of the FTC to pursue such false and misleading environmental claims.

Why It Matters

The 2023 Green Guides will undoubtedly transform the boundaries of substantiable environmental claims. The current comment period—which the FTC extended last week—provides a once-in-a-decade opportunity for interested parties to provide input as to how environmental claims should be treated and whether the Green Guides should be codified. Companies interested in advertising in the ESG space would do well to take this opportunity to ensure their voices are heard.