FTC Looks to Update “Green Guides” for Use of Environmental Marketing Claims

The Federal Trade Commission has recently announced that it is seeking public comment on potential updates and changes to the Green Guides for the Use of Environmental Claims.  The Commission’s Green Guides help marketers avoid making environmental marketing claims that are unfair or deceptive under Section 5 of the FTC Act.  The Commission seeks to update the guides based on increasing consumer interest in buying environmentally friendly products.

“Consumers are increasingly conscious of how the products they buy affect the environment, and depend on marketers’ environmental claims to be truthful,” said FTC attorney and Bureau of Consumer Protection Director Samuel Levine.  “We look forward to this review process, and will make any updates necessary to ensure the Green Guides provide current, accurate information about consumer perception of environmental benefit claims.  This will both help marketers make truthful claims and consumers find the products they seek.”

The Green Guides were first issued in 1992 and were revised in 1996, 1998, and 2012.  They provide guidance on environmental marketing claims, including how consumers are likely to interpret particular claims and how marketers can substantiate these claims to avoid deceiving consumers.

The FTC is requesting general comments on the continuing need for the guides, their economic impact, their effect on the accuracy of various environmental claims, and their interaction with other environmental marketing regulations.  The Commission also seeks information on consumer perception evidence of environmental claims, including those not in the guides currently.

Specific issues on which the FTC expects to get many public comments include:

• Carbon Offsets and Climate Change: The current Guides provide guidance on carbon offset and renewable energy claims. The Commission invites comments on whether the revised Guides should provide additional information on related claims and issues.

• The Term “Recyclable:” Among other things, the FTC seeks comments on whether it should change the current threshold that guides marketers on when they can make unqualified recyclable claims, as well as whether the Guides should address in more detail claims for products that are collected (picked up curbside) by recycling programs but not ultimately recycled.

• The Term “Recycled Content:” Comments are requested on whether unqualified claims about recycled content – particularly claims related to “pre-consumer” and “post industrial” content – are widely understood by consumers, as well as whether alternative methods of substantiating recycled content claims may be appropriate; and

• The Need for Additional Guidance: The Commission also seeks comment on the need for additional guidance regarding claims such as “compostable,” “degradable,” ozone-friendly,” “organic,” and “sustainable, as well as those regarding energy use and energy efficiency.

A list of recent cases brought relating to topics covered by the guides can be found on the FTC’s website.

The Commission vote approving the publication of a Federal Register notice announcing the opening of the public comment period was 4-0, with Chair Lina M. Khan issuing a separate statement.  The notice will be published in the Register in mid-January 2023, after which the FTC will accept comments for 60 days. Information about how to submit comments can be found in the Federal Register notice.

Richard B. Newman is an FTC defense lawyer at Hinch Newman LLP.

Informational purposes only. Not legal advice. May be considered attorney advertising.