Environmental Seals & Certifications: Perfection Need Not Be the Enemy of Good

Environmental seals and certifications have received renewed attention recently.  The Federal Trade Commission (“FTC”), last week, submitted comments to a private group that is in the process of revising its certification program for “sustainable” seafood.  The FTC did not take a stance on the program, but reminded the group of the agency’s view of applicable law.  Also last week, two private groups, Green Peace and ForestEthics, filed joint comments with the FTC urging it to investigate another group’s certification system for “green” lumber and paper products. 

The FTC issued guidance last year specifically on Certifications and Seals of Approval used in marketing.  The spate of comments demonstrates that industry is still grappling with how to implement certification systems that are both effective and compliant.  This is perhaps not surprising given that certifying groups normally face the daunting tasks of not only distilling complex scientific data into certification standards that are manageable and realistic for industry, but also developing a seal or certification that is understandable and attractive to consumers. 

As seals and certifications remain in the regulatory crosshairs, we believe that two points are vital for certifying organizations and companies seeking to use seals to remember: (1) the Federal Trade Commission Act (“FTC Act”) does not demand absolute perfection; and (2) government certification programs already in existence may serve as helpful models. 

Interpreting the FTC Act, the FTC has concluded that the language of a seal used in marketing must be truthful and non-misleading to a reasonable consumer.  Every technical detail and nuance, however, need not be disclosed.  The underlying certification program, likewise, must be based on science that is reliable and generally acceptable to experts in the field, but it need not be exact or beyond any debate.  Popular government certification programs that may serve as useful guides include the U.S. Department of Agriculture’s National Organic Program; the U.S. Department of Transportation’s 5-Star Safety Ratings for motor vehicles; and the Environmental Protection Agency’s Energy Star certification program for home appliances, new homes, commercial buildings, and manufacturing plants. 

What may be heartening to industry is that government certification programs appear to recognize that standards that are too rigid or advertising language that is too technical can be the enemy of good.  For example, under the National Organic Program, the “USDA Organic” seal may be used even though agricultural products bearing the seal may not be entirely “organically” produced under a strict definition of the term.  The enabling law grants USDA the authority to allow exceptions for uses of materials that would not normally be allowed in organic farming.  According to the law, the excepted use must be, among other factors, “consistent with organic farming and handling.”  The USDA has, in turn, granted exceptions to allow the use of certain synthetic insecticides and rodenticides, and other synthetic substances, in limited situations.  Produce from farming operations that take advantage of the exceptions can still bear the seal, “USDA Organic.”