Over the course of the past decade, and the past year in particular, the consumer products industry has seen an uptick in class action lawsuits challenging environmental marketing claims, including claims on product labels or packaging that products are "non-toxic," "biodegradable," "recyclable," and/or "compostable." These lawsuits question the level and quality of evidence behind these environmental marketing claims and assert that consumers are being deceived. At the same time, the Federal Trade Commission (FTC) is revisiting its Guides for the Use of Environmental Marketing Claims1—better known as the "Green Guides"—for the first time in over a decade, with public comment having closed on April 24, 2023.
The FTC's Green Guides provide guidance to product manufacturers on how to make and substantiate environmental marketing claims.2 For instance, the Green Guides detail the criteria for labeling a consumer product as "recyclable" or "compostable."3 The Green Guides also aim to provide practical guidance by way of illustrative examples of comparative, distinguishing, and other types of marketing claims, with the stated goal of protecting and benefitting consumers.
Threats of costly class-action litigation typically invoke the Green Guides when making demands. Although the Green Guides themselves are technically non-binding, officials at both the federal and state level look to the Green Guides as the standard for evaluating deceptive environmental marketing claims. Indeed, some states—e.g., California, Minnesota, Rhode Island, Maine, and Michigan—have even adopted the Green Guides, in part or in full, as state law.4
For example, Michigan codified the Green Guides' approach to environmental marketing claims with respect to "recycled, recyclable, degradable, or [claims that a product] is of a certain recycled content."5 Meanwhile, the FTC has sought public comment on the standards for making claims based on each of these terms.6 Thus, a change to the non-binding Green Guides may well result in changes to binding state law (especially considering that 16 state attorneys general submitted a Comment Letter urging the FTC to bolster the Green Guides to protect consumers).7
The FTC asked a wide range of questions in seeking public comment on the current Green Guides. Some of the FTC's questions sought to fine-tune how particular claims are evaluated—e.g., when a manufacturer's product decomposes within one year after disposal in a landfill, should that product be deemed "degradable," or should the Green Guides provide another timeframe?8 Other questions are more fundamental: how can the Green Guides be retooled to maximize benefits and minimize costs for consumers and small businesses?9
Notably, while the FTC did not seek specific comments on "non-toxic" claims, it still received numerous comments about such claims.10 The Green Guides currently provide that a product advertised as "non-toxic" "likely conveys that the product does not pose any risk to humans or the environment, including household pets."11 Absent "competent and reliable scientific evidence that the product, package, or service is non-toxic for humans and for the environment[,]" marketers should clearly and prominently qualify their claims to avoid deception."12
However, this language is broad and vague enough that one could argue that any product, at a certain level, poses a risk to humans or the environment. Even drinking water can be deadly when consuming above certain quantities.13
Moreover, this language inevitably collides with other terms in the Green Guides, including those for which the FTC sought specific comment in its forthcoming update to the Green Guides, such as claims of degradability. An Illinois-based manufacturer of sustainable textiles called on the FTC to elevate the importance of non-toxic claims, pointing out that degradability claims, "are disconnected from toxicity but should not be[,]" elaborating that [e]ven if something is biodegradable[, that] does not make it inherently non-toxic to the environment."14
Other commenters noted that while a product may not be toxic to humans or the environment in its finished form, it may have been manufactured using potentially toxic chemicals or in a way that could create toxic byproducts.15 Likewise, a product that advertises the absence of one toxic chemical may fail to disclose the also-toxic chemical used in its place.16
As the FTC considers whether and how to modify its Green Guides, consumer products manufacturers are well-advised to tread carefully when making environmental marketing claims, including consulting with experienced counsel as appropriate.
1. 16 C.F.R. § 260 (2012).
2. Id. § 260.2 (2012).
3. Id. §§ 260.7, 260.12 (2012).
4. See Cal. Bus. & Prof. Code § 17580.5; Minn. Stat. § 325E.41; 6 R.I. Gen. Laws § 6-13.3-1; Me. Rev. Stat. Ann. tit. 38, § 2142 (2022); Mich. Comp. Laws. § 445.903(1)(dd)(i).
5. Mich. Comp. Laws. § 445.903(1)(dd)(i).
6. Guides for the Use of Environmental Marketing Claims, 87 Fed. Reg. 77767–77769 (proposed Dec. 20, 2022) (to be codified at 16 C.F.R. pt. 260).
7. Coalition of Sixteen State Attorneys General, Comment Letter to Guides for the Use of Environmental Marketing Claims (Apr. 23, 2023), https://www.regulations.gov/comment/FTC-2022-0077-0987.
8. Guides for the Use of Environmental Marketing Claims, 87 Fed. Reg. 77768 (proposed Dec. 20, 2022) (to be codified at 16 C.F.R. pt. 260).
9. Id. at 77767.
10. FTC Rulemaking Docket, Regulations.gov, https://www.regulations.gov/docket/FTC-2022-0077/comments?filter=%22non-toxic%22.
11. 16 C.F.R. § 260.1(b) (2012).
13. See, e.g., Woman Dies After Water Drinking Contest, CBSNews.com, Jan. 14, 2007, https://www.cbsnews.com/news/woman-dies-after-water-drinking-contest.
14. Natural Fiber Welding, Comment Letter to Guides for the Use of Environmental Marketing Claims (Apr. 23, 2023), https://www.regulations.gov/comment/FTC-2022-0077-0910.
15. Collective Fashion Justice, Comment Letter to Guides for the Use of Environmental Marketing Claims (Apr. 17, 2023), https://www.regulations.gov/comment/FTC-2022-0077-0719.
16. Minnesota Pollution Control Agency, Comment to Guides for the Use of Environmental Marketing Claims (Feb. 20, 2023), https://www.regulations.gov/comment/FTC-2022-0077-0107.
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