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On October 1, 2012, the Federal Trade Commission issued revised
"Guides For The Use Of Environmental Marketing Claims"
– the "Green Guides," 16 CFR Part 260. The
Green Guides originally were issued in 1992 and were revised in
1996 and 1998. The review resulting in the latest revisions began
in November 2007.
The Green Guides set forth the FTC's views concerning
environmental claims and are intended to help marketers avoid
making environmental marketing claims that are unfair or deceptive
and thus violative of Section 5 of the FTC Act. The Guides are
administrative interpretations of the law and thus do not have the
force and effect of law. However, the FTC can take action under the
FTC Act if a marketer makes an environmental claim that is
inconsistent with the Guides.
The Guides apply to claims about the environmental attributes of
a product, package or service in connection with the marketing or
sale of such item or service to individuals or in
business-to-business transactions. They apply to claims in
labeling, advertising, promotional materials and all other forms of
marketing in any medium, whether asserted directly or by
implication.
The Green Guides consist of general principles, specific
guidance on the use of particular environmental claims, and
examples. They begin by reaffirming the FTC's long-standing
position regarding deceptive advertising claims:
A claim is deceptive if it is likely to mislead consumers
acting reasonably under the circumstances and is material to
consumers' decisions.
Marketers must identify all express and implied claims that the
advertisement reasonably conveys, and ensure that all such claims
are truthful, not misleading, and supported by a reasonable basis
before the claims are made.
A reasonable basis often requires competent and reliable
scientific evidence consisting of tests, analyses or studies
conducted and evaluated in an objective manner by qualified persons
and are generally accepted in the profession to yield accurate and
reliable results.
The Green Guides underscore the FTC's antipathy to
general environmental claims, such as "green" or
"eco-friendly." According to the FTC, such claims are
difficult to interpret and likely convey a wide range of meanings.
In many cases, such claims convey that the product has far-reaching
environmental benefits with no negative environmental impact.
"Because it is highly unlikely that the marketers can
substantiate all reasonable interpretations of these claims,
marketers should not make unqualified general environmental benefit
claims."
The Green Guides also provide that an environmental claim should
specify whether it refers to the product, the packaging, a service
or just a portion of the product, packaging or service.
Qualifications and disclosures should be clear, prominent and
understandable. This includes using plain language and sufficiently
large type, placing disclosures in close proximity to the qualified
claim, and avoiding inconsistent statements. Comparative claims
should be clear and substantiated. With regard to third party
certifications and seals of approval, the Guides warn that they may
be an endorsement subject to the FTC's Endorsement Guides
and that their use must include the specific basis for the
certification or seal.
The Guides also provide specific guidance, including examples,
for a plethora of particular environmental claims. These
include:
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.
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