Proposed FTC Green Guides are Greener (Just Don’t Print All 229 Pages of It)

By Carrie S. Martin –

Yesterday, the Federal Trade Commission (“FTC”) announced the issuance of proposed revisions to its “Green Guides,” last revised in 1998.  The proposed revisions would update industry guidance on how to avoid making misleading environmental claims.  In addition, Julie Brill, Commissioner of the FTC, spoke at the annual conference of the National Advertising Division (“NAD”) on October 4, 2010, outlining what she felt were the most important proposed revisions.

Ms. Brill explained that the proposed revisions would update some of the current guidance from the 1998 version and also add new provisions to address claims that were not in use in 1998, such as “renewable energy.”  FTC based the revisions on information collected from several public workshops that included 450 people from the government and industry, among others, over 200 public comments, and a study of how consumers interpret specific environmental claims such as “green” and “biodegradable.”

Among the proposed revisions to the current Guides, FTC cautions marketers against using general claims, such as “environmentally friendly” without qualification.  FTC’s consumer study confirmed that people interpret such claims in different ways and often expect the product to be much more “environmentally friendly” than is actually true or intended by the marketers.  Ms. Brill added that these claims must be properly substantiated.  In addition, the proposed revisions caution against claiming that a product has a certain “certification” or “seal of approval” without revealing the basis for that claim.  Notably, Ms. Brill stated that FTC now considers certifications and seals of approval to be endorsements, and industry should follow FTC’s recently revised Guides Concerning the Use of Endorsements and Testimonials in Advertising in making such claims.  That guidance can be found here.   Also see our prior blog posting on that guidance.

If revised, the Green Guides would also state that “new” environmentally-friendly claims such as “renewable materials” or “renewable energy” require qualification and proper context.   Again, this reflects the consumer studies results showing that people interpret these claims differently than intended by marketers.  The Guides would state, for example, that one cannot claim that a product is made with “renewable energy” if the power used to make that product derived from fossil fuels.  Finally, if one makes a claim about “carbon off-sets,” it must be supported by competent and reliable scientific evidence.  In addition, such claims are not appropriate if such off-set is already required by law.

Comments on the proposed revisions must be submitted by December 10, 2010, either electronically or in paper form.  Ms. Brill noted that the FTC is particularly interested in comments that include supportive data.  Electronic comments should be submitted here, while paper comments, while paper comments should be mailed or delivered to: Federal Trade Commission, Office of the Secretary, Room H-135 (Annex J), 600 Pennsylvania Avenue, NW, Washington, DC 20580.