McAfee & Taft tIP Sheet - June 2013: It’s not easy saying you’re green - Avoiding unfair and deceptive environmental marketing claims by adhering to the FTC Green Guides

by McAfee & Taft
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As a famous amphibious Muppet once noted, it’s not easy being green. This sentiment is shared by the Federal Trade Commission, which has issued Guides for the Use of Environmental Marketing Claims (also known as the “Green Guides”) in response to recent incidences of “greenwashing” and other deceptive practices touting otherwise-ordinary products and practices as “green” or “environmentally friendly.”

The Green Guides set forth the FTC’s current views on the use of environmental claims in advertising and are intended to help companies avoid making unfair or deceptive statements regarding the environmental benefits of their products or services. The Green Guides provide limitations and instructions on the use over a wide range of environmental representations, from the use of generic terms such as “environmentally friendly,” to the use of specific phrases such as “refillable” or “compostable.” In general, however, the Green Guides are intended to ensure that customers know and understand the environmental benefits of whatever product they are purchasing. With this in mind, a company seeking to promote the environmental benefits of its products or services should, at a minimum, do the following:

  • Avoid broad or unqualified language: Broad statements, such as “greener,” “less plastic,” or “more eco-friendly” don’t send a clear message to the consumer, and may overstate the benefit of using a particular product. Whenever possible, use clear qualifying language, setting forth the specific facts that make your product or process environmentally sustainable.
  • Don’t overstate the benefits of your product, directly or by implication: The Green Guides indicate that the FTC is particularly concerned with comparative statements, such as “50% more recycled content than our previous packaging” or “fewer VOCs than our competitors’ products.” These statements, without more, don’t tell the customer how much better the advertised product is than the competing or previous product. Increasing the amount of recycled content in a product’s package by 50% sounds desirable, but if the previous packaging used very little recycled content, the actual environmental benefit is likely to be small. Similarly, using “fewer VOCs” than a competitor might sound like a good thing, but if the difference in the VOC content of a product is slight, there is a risk of consumer confusion. Whenever possible, provide specific, quantifiable details on the extent to which a product uses “more” of a beneficial product or “less” of a hazardous one.
  • Make sure the customer has enough information to take advantage of the claimed environmental benefit: If the environmental benefit depends upon how a consumer uses a product, make sure to provide the consumer with enough information to obtain the benefit. For example, if an item is “compostable” in a commercial compost facility, but not a home compost bin, say so. If an item is “refillable,” make sure that there is a readily available means for the ordinary consumer to obtain a refill. And if an item is biodegradable, make sure to specify whether the consumer must dispose of the item at a special facility (other than a landfill or incinerator) in order to obtain the benefit of purchasing an item made from biodegradable materials.
  • Back up your claims, and keep backing them up: Make sure you’ve conducted the research to support any claim you make – particularly those comparing your products to your competitors’ products – and follow up with additional testing and analysis to ensure that your representations remain accurate as your products and your competitors’ products change.
  • Consult the Green Guides before indicating that your product or process has any of the following benefits: Benefits from the use of carbon offsets; is compostable, biodegradable, recyclable, non-toxic, ozone-safe or ozone-friendly; uses recycled content; is refillable; uses renewable energy or materials; is “free of” certain materials; uses “less” of any particular source material; and meets with any particular seal of approval or certification. Such claims are subject to specific limitations on use as set forth in the Green Guides.

It is important to note that the FTC’s guidelines represent only the FTC’s current views, so they are not binding on the agency. Adherence with the guidelines do not trump federal, state or local laws and cannot be viewed as protection from future liability, but adherence to the Green Guides, and the steps outlined above, will reduce the risk that you will be found liable for “greenwashing” your products and services.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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