United States: Environmental False Advertising: An Earth Day Green Guide Review

Last Updated: April 27 2017
Article by David A. Kluft

Earth Day is coming up on April 22, which means that a lot of consumers are going to be reminded to think green, and to buy green. What if your company is looking to access this vast market of environmentally-minded shoppers, but your product or service isn't really that environmentally conscious? Can you just go ahead and label yourself "Green" anyway? Who's gonna notice?

Well, the Federal Trade Commission (FTC) for one. The FTC monitors marketing claims asserting the environmental attributes of products and services, and evaluates these claims principally by reference to the " Green Guides," a series of FTC guidelines initially promulgated in 1992 and most recently updated in 2012. In addition to the FTC, the Green Guides are also used by the National Advertising Division, a self-regulatory mechanism for the advertising industry, before which the veracity of advertising claims is often challenged.

The object of the Green Guides is to help marketers avoid FTC and NAD actions by ensuring that environmental advertising is not deceptive and not in violation of Section 5 of the Federal Trade Commission Act. The Green Guides contain specific advice as to many common environmental marketing buzzwords, such as claims that products are "recyclable," "compostable," "biodegradable" or "renewable."

Since 2012, the Green Guides also contain a prohibition against unqualified "general environmental benefit" claims, such as "Green" or "eco-friendly." For example, simply calling a product "eco-friendly" without more explanation is considered deceptive because the term can reasonably mean a lot of different things to a lot of different consumers. Unless the advertiser can substantiate all of those meanings, the claim is deceiving at least some reasonable consumers.

To help you get ready for the Earth Day barrage of environmental advertising claims, here are some Green Guide-related matters before the FTC and NAD that have resulted in an opinion or other resolution since around the time of the last Earth Day.

A Battery of False Claims

LEI Electronics' advertisements for its Eco Alkaline batteries made almost every Green Guide claim you could think of. According to LEI, Eco Alkaline batteries were "landfill conscious," "carbon free," "carbon neutral," "recyclable," "compostable" and, gosh darnit, just "the world's most eco responsible battery." According to Energizer Brands, however, these claims were nonsense. Quick as a bunny, Energizer initiated an action before NAD, and NAD mostly agreed with Energizer.

Among other things, LEI advertised that its product was "made from 80% recyclable materials," but it turned out that this was only true about the packaging. LEI called its product "recyclable," but the Green Guides provide that you should not label a product "recyclable" unless at least 60% of the likely consumers have access to an established recycling program for the product, which apparently was not the case here. LEI also issued an internet advertisement for its battery that began:

Every day, in millions of homes around the world, people set aside their vegetable scraps and throw them into the compost bin in their yards. They convert their rubbish into a potent, nutritious plant manure. What a powerful idea.

Does this imply that the Eco Alkaline battery is compostable? Energizer and NAD thought so. Is the Eco Alkaline battery compostable? Nope.

LEI agreed to discontinue the above-described claims, but refused to stop calling its product "carbon neutral." LEI participates in programs through which it had obtained "carbon free" certifications, but under the Green Guides that certification alone is not sufficient; the advertiser must also be able to independently substantiate the claim communicated by the certification. Here, LEI based its "carbon neutral" claim in part on a life-cycle assessment that calculated the product's carbon footprint in Canada. NAD rejected this study as irrelevant to the U.S. market. Pursuant to standard NAD policy and practice, that part of the case has been referred to the FTC. Energizer Brands LLC v. LEI Electronics, Case #5927 (2016).

What does Biodegradable mean?

How long does it take for something to biodegrade? And how long does a reasonable consumer think it takes something to biodegrade? Turns out the answers to these questions are pretty different.

The Green Guides state that if you use the word "biodegradable," without further qualifying how long the degradation will take, you are impliedly stating that the product will degrade within "a reasonably short period of time." What is a "reasonably short period of time"? One year, according to the Green Guides. Therefore, if you call your product "biodegradable" without more, and it will not degrade within one year, the FTC may consider your marketing deceptive.

ECM BioFilms manufactures an additive that promotes biodegradation in plastics, and in many instances it marketed its product as "biodegradable" without qualifying that statement with a time period. In 2013, the FTC filed an administrative complaint against ECM alleging in part that, because the ECM product did not degrade within one year, ECM's unqualified "biodegradable" claim was impliedly deceptive.

An Administrative Law Judge held that the FTC could not simply rely on the "one-year rule" in the Green Guides, but had the burden of proving that at least a "significant minority" of reasonable consumers would believe that the word "biodegradable" without further qualification meant degradation in one year. After a three week trial, the ALJ found that the FTC had not met this burden. Based on the record before him, the ALJ found that, at best, a "significant minority" of consumers believed that "biodegradable" by itself implied degradation in five years. Therefore, the FTC's allegation that ECM had implied a "one year" period failed.

On appeal to the FTC Commissioners, the FTC changed tactics and abandoned its "one-year rule," at least for this case. The FTC reasoned that the ALJ had not found support for a "one-year rule," but had found support for a "five-year rule," i.e., if you use "biodegradable" without qualification, a "significant minority" of consumers will think the product will degrade within five years. Since ECM's products will not degrade within five years, the unqualified "biodegradable" claim was still deceptive. The Commissioners accepted this argument and reversed the ALJ's decision (with a partial dissent by Commissioner Maureen K. Ohlhausen).

ECM appealed to the Sixth Circuit, arguing that the "five-year rule" had no more factual support than the "one-year rule," because it represented the view of only a minority of consumers. ECM also argued that "nothing biodegrades within five years," let alone one year, so this consumer belief is scientifically invalid and should not be considered reasonable. (This argument would have had more force had ECM not also been telling consumers that its product biodegraded within five years).

On March 16, 2017, the Sixth Circuit rejected ECM's arguments and affirmed. The Court held that the FTC was entitled to prohibit advertisements that deceived only a "significant minority" of consumers. Furthermore, the Sixth Circuit held that the standard for "reasonableness" with regard to false advertising is not "scientific validity," but the "public's impression." ECM BioFilms, Inc. v. Federal Trade Commission, 2017 U.S. App. LEXIS 4609 (6th Cir. 2016).

It's Getting Hot in Herre

Last year, Nest Labs' Earth Day advertisements claimed that its programmable thermostat technology "saved energy." NAD initiated an action to determine whether this assertion was accurate and whether the claim "saves energy" was a "general environmental benefit" claim, particularly seeing as the claim had been made in the context of Earth Day. If it was a "general environmental claim," then simply claiming a product "saves energy" without further qualification would be a violation of the Green Guides and deceptive under Section 5.

Fortunately for Nest Labs, NAD determined that "saves energy" was a specific benefit claim that required no further qualification. NAD also found that Nest Labs' product was the real deal, and in fact did "save energy." In re Nest Labs, Inc., Case #6024 (2016)

NAD came to a similar conclusion with respect to Comcast Cable's claim that its Xfinity Home programmable thermostat feature also "saves energy." DirectTV, LLC v. Comcast Cable Communications, LLC, Case #5926 (2016).

The Toxic Avenger

The Green Guides state that it is deceptive to misrepresent, directly or by implication, that a product is "non-toxic." Applegate Insulation represented that a fire retardant additive in its insulation, "boric acid, is six times less toxic to humans than table salt." This claim was challenged before NAD on the grounds that, among other things, boric acid is classified by OSHA as a hazardous substance, a skin irritant, and a health risk to pregnant women. NAD recommended discontinuance of the claim, and the advertiser accepted the recommendation. North American Insulation Manufacturers Association v. Applegate Insulation, Case #5961 (2016).

A Fisherman's Tale

Prevention Pharmaceuticals, the purveyor of a fish oil concentrate sold as a dietary supplement, advertised that its product had the "highest purity levels" because it was "100% free of contaminants and toxins," as well as "free from heavy metals, contaminants and fillers." A competitor took issue with these claims on the ground that Prevention's product specifications allowed for background or trace levels of lead, mercury, arsenic, cadmium, PCBs and dioxins. Prevention defended itself by reference to the Green Guides. The Green Guides state that you can advertise a product as "free of" a substance, even if it contains a little bit of that substance, provided that "the level of the specified substance is no more than that which would be found as an acknowledged trace contaminant or background level."

But NAD rejected this defense and recommended the claims be discontinued anyway. NAD held that the Green Guide's allowance of trace contaminants was just fine when, for example, advertising the amount of formaldehyde emanating from home insulation. However, the "Green Guides do not purport to speak to the amount of toxins and heavy metals that are safe or desirable for humans to ingest." In other words, when you put something into your digestive tract, there is less room for error. Great HealthWorks, Inc. v. Prevention Pharmaceuticals, Inc., Case #5966 (2016)

"Diesel is Dirty"

Finally, we'd be remiss if we didn't mention the FTC's flagship environmental enforcement action against the Volkswagen Group. According to the FTC, while Volkswagen was promoting its line of diesel engine vehicles as "clean," it was all the while using illegal software (known as a Defeat Device) to cheat on EPA emissions tests. In two stipulated orders (for 2.0 and 3.0-liter models), Volkswagen recently agreed to a collective settlement in the neighborhood of $20 billion.

What's the Green Guide connection? Take a look at the complaint. Had the matter not settled, the FTC telegraphed that it was going to make a case under Section 5 in part based on deceptive "general environmental benefit" claims that had appeared all over Volkswagen advertising campaigns aimed at "progressive" and "environmentally-conscious" consumers." These campaigns including a series of advertisements encouraging do-gooders to "Do Your Part" by going diesel, as well as the genuinely funny "Old Wives' Tale" spots, and the not-so-funny "Green Police" Super Bowl ad. In re Volkswagen "Clean Diesel" Marketing, 2017 U.S. Dist. LEXIS 51340 (N.D. Cal. April 4, 2017).

Originally posted April 18, 2017.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
2 Dec 2019, Panel, Boston, United States

Hear from industry leaders on the latest trends in Family Office investments and predictions for 2020.

13 Dec 2019, Roundtable, Boston, United States

The New England Electricity Restructuring Roundtable has been meeting bimonthly since 1995 to discuss current topics related to important changes in the electric power industry in Massachusetts and throughout New England.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions