The Federal Trade Commission recently issued revised Guides for the Use of Environmental Marketing Claims, commonly known as the "Green Guides."1 The Green Guides provide instruction to companies on environmental marketing claims, whether such claims are directed to individuals or are business-to-business (a clarification from the previous version), and whether such claims are asserted through words, symbols or logos. The Green Guides were last revised in 1998, and the 2012 version includes updates to the previous guides and new sections on various subjects, including the use of carbon offsets and "green" certifications. While the Green Guides are not binding rules or regulations, they provide guidance on the types of claims that the FTC may find deceptive under Section 5 of the FTC Act, which gives the FTC authority to bring enforcement actions against deceptive marketing claims. In recent years, the FTC has brought several actions involving allegedly deceptive environmental marketing claims. Moreover, some states incorporate the Green Guides into their law, and the National Advertising Division of the Council of Better Business Bureaus uses the Green Guides in assessing advertising disputes.
The Green Guides provide general principles for all environmental marketing claims. Not surprisingly, environmental marketing claims should be truthful, substantiated and non-deceptive. Companies should not overstate an environmental benefit or attribute of their products or services. Qualifications and disclosures should be "clear, prominent and understandable." An environmental marketing claim should specify whether it refers to the product, its packaging, a service, or a portion thereof, unless already clear to the consumer.
The Green Guides also provide guidance on specific topics. One significant revision to the previous guides is directed at "general environmental benefit claims." The FTC is now cautioning marketers to avoid broad, unqualified general environmental benefit claims such as "green" or "eco-friendly." The FTC believes such claims are difficult to interpret and convey a wide range of meanings that are difficult to substantiate. The FTC recommends qualifying such general claims with clear and prominent language that limits the claim to the specific environmental benefit.
The revised Green Guides contain new sections on various topics that were not in vogue when the Guides were last reviewed, including: (1) certifications and seals of approval; (2) carbon offsets; (3) free-of claims; (4) non-toxic claims; (5) made with renewable energy claims; and (6) made with renewable materials claims.
In the case of "free-of claims," for example, the FTC warns that companies should not make claims that a product is "free-of" a particular substance if the product contains another substance that poses a similar environmental risk. Moreover, a "free-of claim" may be deceptive when the substance is generally not associated with the particular product category and thus generally is not concerning to consumers of that product.
Of note, the revised Green Guides do not address use of the terms "sustainable," "natural" and "organic." The FTC felt it lacked sufficient information to provide meaningful advice on some of these terms, and it did not want to contradict or duplicate guidance or rules of other agencies, such as the U.S. Department of Agriculture, which has authority over "organic" claims for products that are agriculturally-based.
The FTC appears to be taking a tougher stance on environmental marketing claims, and companies should therefore pay special attention to the Green Guides before touting the environmental benefits of their products or services.
Footnote
1. The "Green Guides" are currently available on the FTC's website at http://business.ftc.gov/advertising-and-marketing/environmental-marketing.
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