United States: FTC Seeks Comments On "Green Guides"

The Federal Trade Commission (FTC) announced earlier this month that it is seeking public comments on potential updates to its "Guides for the Use of Environmental Marketing Claims" ("Guides," also known as "Green Guides"). The Guides provide guidance for avoiding unfair or deceptive environmental marketing claims, including discussions on how consumers are likely to interpret claims and how advertisers can substantiate them. The Guides were established in 1992 and most recently updated in 2012, but the FTC is looking to update them again based on consumers' increasing interest in buying environmentally-friendly products.

According to the FTC's press release, the FTC seeks 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" and additionally seeks information on "consumer perception evidence of environmental claims." The FTC's press release notes that the FTC expects to get public comments on specific issues such as:

• 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.

The notice has been published in the Federal Register, which states that the FTC "is soliciting comments about the efficiency, costs, benefits, and regulatory impact of the Guides to determine whether to retain, modify, or rescind them." The FTC will accept comments on these issues until February 21, 2023.