Seyfarth Synopsis: For thirty years, the FTC has published non-binding guidance on how to avoid making “unfair” or “deceptive” environmental claims in its “Green Guides.” The FTC has announced it may make its first update to the Green Guides in over ten years, and has put forth a request for public comment on potential changes. The period to submit comments closes on February 21, 2023.

On December 14, 2022, the Federal Trade Commission (“FTC”) announced that it was seeking public comment to aid it in considering potential updates to the “Green Guides,” a set of non-binding guidance aimed to help marketers avoid making environmental marketing claims that could be construed as “unfair” or “deceptive” under the FTC Act.[1] The FTC’s Green Guides were first published in 1992, and have since been revised three times, most recently in 2012.[2] Since that time, both the FTC and private litigants have continued to pursue allegations that product labels or advertising misleads consumers into believing that a product or service is more environmentally-friendly than advertised—which the FTC has identified as a key concern in light of the “growing number of American consumers [] looking to buy environmentally friendly, 'green' products[.]”[3]

While the FTC identifies dozens of specific questions in its formal request for comment,[4] broadly-speaking the FTC has indicated it is interested in receiving comments on:

• The continuing need for the Green Guides;
• The Green Guides’ economic impact, efficacy on the accuracy of environmental claims, and interaction with other regulations;
• Consumer perception of environmental claims;
• Whether changes should be made to current guidance on specific environmental claims, including carbon offsets, climate change, and the terms “recyclable” and “recycled content”; and
• Whether additional guidance is needed regarding environmental claims such as “compostable,” “degradable,” "ozone-friendly,” “organic,” “sustainable,” or with respect to energy efficiency.[5]

In a separate statement, FTC Chair Lina Khan explained further that “the questions focus on whether any aspects are outdated and in need of revision,” providing the example that “recent reports suggest that many plastics that consumers believe they’re recycling actually end up in landfills. One question, then, is whether claims that a product is recyclable should reflect where a product ultimately ends up, not just whether it gets picked up from the curb.”[6]

The importance of an update to the Green Guides should not be understated. The Green Guides provide non-binding guidance and do not represent the only permissible approaches for making environmental marketing claims. [7] However, the FTC looks to the Green Guides when considering whether to bring an enforcement action regarding environmental marketing claims, as has the National Advertising Division of the Better Business Bureau when issuing decisions on challenges brought by competitors.[8] Furthermore, private plaintiffs seeking to bring consumer class actions frequently cite to the Green Guides in putative consumer class action complaints. Any revisions to the Green Guides will therefore prove to be significant in shaping how products are advertised and marketed, as companies will look to the revised guidance in order to mitigate risk of enforcement actions or other challenges to labeling and advertising.

Submission of comments opened on December 20, 2022 and the period to submit comments closes on February 21, 2023.[9]

[1] See Press Release, FTC Seeks Public Comment on Potential Updates to its ‘Green Guides’ for the Use of Environmental Marketing Claims (FTC, Dec. 14, 2022).

[2] Id. A copy of the current Green Guides, last updated on October 11, 2012, is available on the FTC’s website here.

[3] Environmentally Friendly Products: FTC’s Green Guides (FTC, visited Dec. 22, 2022).

[4] Guides for the Use of Environmental Marketing Claims, RIN 3084-AB15 Regulatory Review; Request for Public Comment (FTC Dec. 14, 2022).

[5] Press Release, supra n. 1.

[6] Statement of Chair Lina M. Khan Regarding the Regulatory Review of the Guides For the Use of Environmental Marketing Claims, Commission File No. P954501 (FTC, Dec. 14, 2022).

[7] Guides for the Use of Environmental Marketing Claims, supra n. 4 at 2.

[8] Stover, Monica, Environmental Marketing Claims and the FTC’s “Revised Green Guides”, 37 Mich Env Law J 2 (2020).

[9] Federal Register (Dec. 20, 2022).