PFAS: The “Forever Chemicals” In Consumer Products And Why Businesses Should Take Care In Their Marketing

Vinson & Elkins LLP

PFAS (per- and poly-fluoroalkyl substances) have garnered significant national attention in the last few years. PFAS have made recent headlines in multi-million dollar settlements, Biden campaign promises, proposed EPA rules, congressional hearings, and state-level regulatory efforts across the country. For more about these activities and further background on PFAS please see this previous post.1 Growing public attention to PFAS (and thus, PFAS presence in consumer products) is consistent with recent trends in consumer demand for environmentally friendly or “green” products. Businesses have responded to this interest in green products by increasing their environmental marketing efforts, particularly with respect to highlighting the absence of a PFAS known as PFOA (perfluorooctanoic acid). But with a larger spotlight on a PFAS family consisting of thousands of unique chemicals, businesses should take care to manage how they advertise product information to consumers to avoid running afoul of U.S. regulations against deceptive advertising. The Federal Trade Commission’s (“FTC”) Guides for the Use of Environmental Marketing Claims (the “Green Guides”) set forth federal guidance for businesses to help navigate issues like this one.2

Background on the Green Guides

The Green Guides were first issued in 1992 and lay out general principles businesses should consider when making an environmental claim about a product. The Green Guides also include guidance on how businesses should expect consumers to interpret specific claims and, importantly, how businesses can appropriately limit or qualify their environmental marketing claims to avoid misleading consumers. The Green Guides are not FTC rules or regulations, rather, they serve to warn about the types of marketing claims the FTC might find deceptive and therefore be in violation of Section 5 of the FTC Act (“Section 5”).3 The FTC can bring an enforcement action if it believes that all reasonable interpretations of an environmental marketing claim are not truthful, are misleading, or are otherwise “not supported by a reasonable basis.”4 Accordingly, any business looking to avoid an FTC enforcement action over its PFAS marketing (or any environmental marketing) should take care to review the Green Guides.

In the 2012 updates to the Green Guides, the FTC introduced guidance on several new categories of environmental marketing. One of the new categories covers free-of claims (e.g., “this product does not contain asbestos”). The Green Guides explain how even a truthful free-of marketing claim can be considered deceptive if the product “contains or uses substances that pose the same or similar environmental risks as the substance” advertised as not present in the product.5 Potential FTC action against PFAS marketing would most likely relate to this category of guidance. Thus far, the agency has brought “free of” enforcement actions over marketing claims representing that the product was either free of volatile organic compounds, chemical-free, or emission-free. For more information about FTC enforcement trends, please see this previous post.

The Green Guides and PFAS

Though the FTC has never brought an enforcement action concerning the marketing of products containing PFAS, the combination of the Biden administration’s commitment to addressing PFAS and growing consumer awareness of PFAS could lead to an increase in FTC activity in this space. Businesses that market their products as free-of one particular type of PFAS without any qualifying language should be aware that some consumers might interpret such statements to mean the product is free of all PFAS — or at least the most concerning ones. For example, many cookware products today are advertised as PFOA-free, as the chemical has been largely phased out of production in the U.S. But some consumer advocate and environmental groups dispute whether the PFOA-replacement PFAS used in production are safe. Other organizations have called for the removal of PFAS from consumer products and encourage shoppers to avoid PFAS products all together. Thus, related PFAS claims could be seen as potentially misleading to consumers under current FTC guidance. The FTC has been criticized by these same organizations for not previously addressing PFAS marketing materials. Like the example above, potential FTC enforcement actions over PFAS marketing would most likely center on a “free-of” claim, but could conceivably be brought for allegedly deceptive biodegradable or non-toxic marketing claims. Accordingly, businesses should vet their PFAS marketing against all subsections of the Green Guides.

Take-aways

Increased public and political scrutiny on PFAS in consumer products could prompt the FTC to ramp up its activity addressing PFAS marketing. This activity could take the form of additional clarification to marketers of PFAS-containing products or new enforcement actions. Either way, with the changing regulatory landscape and the Biden administration’s focus on these issues, businesses should revisit PFAS claims they make to consumers, and, when doing so, use the Green Guides as a critical benchmarking tool.

1 PFAS and the Transition to the Biden Administration: A Round-Up of Recent PFAS Activity, Vinson & Elkins: Insights (Feb. 25, 2021), https://www.velaw.com/insights/pfas-and-the-transition-to-the-biden-administration-a-round-up-of-recent-pfas-activity/.

2 The Green Guides, 16 C.F.R. pt. 260, available at: https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-issues-revised-green-guides/greenguides.pdf.

3 15 U.S.C. § 45. Section 5 gives the FTC the authority to prevent “unfair or deceptive acts or practices in or affecting commerce.” 15 U.S.C. § 45(a).

4 16 C.F.R. § 260.2. General guidance on the substantiation of claims is available in the Green Guides and in the FTC Policy Statement Regarding Advertising Substantiation (appended to In re Thompson Med. Co., Inc., 104 F.T.C. 648, 839 (1984), aff’d, 791 F.2d 189 (D.C. Cir. 1986), cert. denied, 479 U.S. 1086 (1987)).

5 40 C.F.R. § 260.9(b)

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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