The Federal Trade Commission (FTC) has released its long-awaited
proposed revisions to its Green Guides and is seeking public
comment on those proposals until Dec. 10, 2010. The proposals would
update the Green Guides that were first issued in 1992, and revised
in 1996 and last updated in 1998. The Green Guides are
administrative interpretations that create safe harbors for
marketing claims, but they are not enforceable regulations. The FTC
website provides a summary of the proposed revisions and a link to
provide comments at www.ftc.gov/opa/2010/10/greenguide.shtm.
While the FTC proposals do not provide any specific guidance about
claims for "ustainable," "natural" or
"organic" products, they do include guidance on
marketers' use of certifications and seals of approval,
renewable energy and renewable material claims, as well as carbon
offset claims.
The FTC Green Guides proposal includes the following:
General Environmental Benefit Claims – (e.g. "green" or "eco-friendly")
Marketers should not make unqualified, general environmental
benefit claims as they may be difficult or impossible to
substantiate. Qualifications should be clear, prominent and limited
to a specific benefit. Marketers cannot use websites to qualify
otherwise misleading claims.
Certifications and Seals
The proposal emphasizes that certifications and seals are
endorsements covered by the Commission's Endorsement Guides.
Additionally, marketers must disclose "a material
connection" between the endorser and the marketer. Finally, a
third-party certification does not eliminate the marketer's
obligation to have substantiation for its claims.
Degradable Claims
Under the existing Green Guides, degradable claims required only
that the breakdown and return to nature be "within a
reasonable short period of time." The new proposal would
require complete decomposition is no more than one year after
customary disposal.
Compostable Claims
Similarly, the current vague "timely manner" for
compostable claims would be revised to require that the compostable
material would break down in approximately the same time as
materials with which it is composted.
Ozone-Safe/Ozone Friendly
The Green Guide updates reflect the changes in the regulations
concerning ozone-depleting chemicals.
Recyclable Claims
For recyclable claims, if a "substantial majority" of
consumers have access to the recycling facilities, then an
unqualified recycling claim can be made. If only a significant
percentage of consumers have access to the recycling facilities
needed, then marketers should qualify the claim ("May be
recyclable in your area"). If less than a "significant
percentage" of consumers have access to the facilities
required for recycling, marketers will need to further qualify the
claim ("recyclable only in communities that have recycling
programs").
Free Of Claims
Even technically true claims can be deceptive if the substance
present poses the same risk as the "free-of" substance or
if the "free-of" substance has never been associated with
a product category. Free-of even may be appropriate when a de
minimis amount of a substance is present; however, any free-of
claim could convey a general benefit or superiority claim requiring
qualification.
New additions to the FTC Green Guides Proposal include the
following:
Made with Renewable Materials
Marketers are encouraged to provide specific information about
the renewable material involved, such as how it was sourced, and
why it is renewable. If the item is not made entirely of renewable
materials the claim should be qualified.
Made with Renewable Energy
Unqualified renewable energy claims should not be made if the
power used to manufacture any parts of the product was derived from
fossil fuels. Marketers should specify the source of the energy;
qualification also would be called for when less than all (or
virtually all) of the processes involved were powered with
renewable energy. Further, a claim that an entity which generates
electricity was using renewable energy would be deceptive if the
entity was selling renewable energy certificates for all the power
it generated (thereby allowing the buyer to claim it was using
renewable energy).
Carbon Offsets
Marketers making claims about carbon offsets should have
competent and reliable scientific evidence for their claims,
including appropriate accounting methods for quantifying emission
reductions and showing they are being sold only once. Marketers
should disclose if the offset purchase funds emission reductions
will occur for two years or longer. Finally, if the basis of the
offset is already required by law, advertise it as a carbon offset
would be deceptive.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
