Last last year, the Federal Trade Commission announced that it was seeking public comment on proposed revisions to its Guides for the Use of Environmental Marketing Claims. The FTC also asked for input on whether the Commission should initiate a rulemaking to codify (some or all of) the standards set forth in the Green Guides. After being extended, the public comment period ended in April.
Earlier this week, as part of the Green Guides review, the FTC held a public workshop in Washington, D.C., "Talking Trash at the FTC: Recyclable Claims and the Green Guides." The workshop was focused specifically on whether the Commission should update its guidance on "recyclable" claims. (Full disclosure -- I was one of the speakers at the workshop.)
Although the workshop is over, and even though the general public comment period for the Green Guides review has ended, the FTC is still accepting public comments on issues related to "recyclable" claim through June 13th. So, if you didn't get a chance to submit comments, you still have a chance to weigh in (along with the thousands of others who have already done so).
The FTC has posted a video of the workshop, if you want to watch that. But, here are a few takeaways from my time watching, and participating in, the workshop.
- FTC staff is clearly interested in what people have to say and in learning about the issues. Each of the three panels represented a wide range of viewpoints and the FTC attorneys leading the workshop, Julia Solomon Ensor and Hampton Newsome, went out of their way to ensure that everyone had a chance to express their opinions. Their questions -- and probing follow-up questions -- also reflected both a real interest in the issues -- and a deep understanding of the difficult questions that need to be tackled. And, further demonstrating the FTC's openness to people's opinions, FTC staff allowed anyone attending the workshop to step up to the microphone and share their comments, without any time limit, and they promised to stick around for as long as anyone had anything to say. (And they did!) James Kohm, the Associate Director of the FTC's Enforcement Division, opened the workshop by emphasizing this as well, saying that the workshop was "an important part of our information gathering" and that "we are open to being influenced."
- Kohm cautioned workshop participants, however, that the FTC doesn't set environmental policy, but is just focused on whether advertising claims violate the FTC Act. This is an important issue for marketers to keep in mind as they watch the Green Guides review process. While I'm sure that the FTC cares about the earth as much as the rest of us do, don't expect the Commission to take on issues that are within the purview of Congress or the EPA. If the FTC makes changes to the Green Guides, those changes aren't going to be focused on increasing recycling or other climate change efforts. Rather, the changes will be focused on giving marketers guidance about how to avoid making deceptive environmental marketing claims.
- Probably the biggest take-away from the workshop was -- at least in my view -- that there were no big, surprising conclusions or areas of consensus about the types of changes that are needed to the Green Guides. That's not to say there weren't lots of opinions shared about what should or should not be changed, but there certainly really weren't any big take-aways that I didn't expect to hear.
- We heard a lot about how useful the Green Guides are and how important the examples are in providing practical guidance to marketers. Lots of speakers -- including me! -- encouraged the FTC to include new examples to give guidance the marketers they need.
- While there's been plenty of talk about whether to revise the Green Guides to address the biggest current issues of concern, when I heard speakers talk about the issues they were, in fact, concerned about, most of those concerns seemed like they were already addressed by the FTC's current guidance. It seemed to me that what many of the speakers were most frustrated about was the fact that they believe (rightly or wrongly) that many marketers just aren't complying with the current Green Guides. The FTC may very well take away from the workshop that what is actually needed is just more enforcement related to the current Green Guides.
- There was lots of discussion about the complexities of the nation's recycling system. There weren't simple answers to many of the big questions that were posed, and this certainly suggests to me that the FTC has to be very cautious about issuing new guidance -- or promulgating new rules -- without being sure that it takes all of the different factors into account. We heard about the problems of "wishcycling," which is when people put things into the blue bin that aren't recyclable, and the benefits of encouraging consumers to put things into the blue bin that aren't recyclable, in order to encourage recycling generally. There are no easy answers!
- There was lots of hand wringing about resin identification codes, which both serve a useful function (they tell MRFs -- as well as consumers -- what type of plastic it is), but can also confuse consumers about whether something is recyclable, particularly when the RIC is included as part of a chasing arrows symbol. But, with many states requiring the use of the chasing arrows symbol, there's no easy solution to addressing the conflict between FTC guidance on the use of the chasing arrows symbol and what state laws require.
- There was also an interesting discussion about chemical recycling and about what guidance the FTC should give about recycling claims that are based on the use of chemical recycling. There were more questions than answers, but one of the big questions that was raised was whether the harms caused by chemical recycling outweigh the benefits. Will the FTC expect some sort of life cycle analysis before making claims based on chemical recycling?
- There was also some discussion about whether the FTC should engage in a rulemaking -- and the risks and benefits of a green marketing rule -- but I don't think there were any big conclusions reached. I certainly wonder whether there will be sufficient evidence in the record to support a rulemaking and whether, even if there is, the risks of issuing rules in a complex, rapidly evolving area, will actually help consumers (let alone the earth).
There are lots of issues -- and a mountain of public comments -- that the FTC has to now consider as it thinks about potential revisions to the Green Guides. And this is in addition to a host of other reviews and rulemakings that the FTC is engaged in right now. Does the FTC have all of the information that it needs, or will it hold other workshops, invite additional public comment, or even conduct some studies? Whatever the FTC decides to do, it's probably going to be quite some time before we see some proposed revisions to the Green Guides.
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