December 15, 2022
Brenda H. Gotanda, Esq.
MGKF Special Alert
The Federal Trade Commission (FTC) has announced plans to undertake a decennial regulatory review of its Guides for the Use of Environmental Marketing Claims, commonly known as the “Green Guides,” and will be soliciting public comments to aid in determining whether to retain, modify or rescind them.
The FTC’s Green Guides, most recently updated in 2012, are designed to help marketers avoid “greenwashing” or making exaggerated or unsubstantiated environmental benefit claims in advertising and labeling that may run afoul of the FTC Act’s prohibition on unfair and deceptive claims. They provide guidance on how consumers are likely to interpret particular claims and how marketers can substantiate their claims to avoid deceiving consumers. The Green Guides provide both general principles applicable to environmental marketing claims and specific guidance on certain types of environmental benefit claims. According to a statement issued by FTC Chair Lina M. Khan, people are increasingly basing their purchasing decisions upon environmental impact and want to know how a product impacts climate change, pollution or other environmental factors and the Green Guides need to keep up with both science and consumer perception.
The FTC has posted on its website a copy of its anticipated Federal Register notice and request for public comment. According to the notice, the FTC is seeking comment on general issues, such as the continuing need for the Green Guides, their economic impact and their effect on accuracy of environmental claims. In addition, the FTC is soliciting comments related to specific types of environmental benefit claims that have generated increased attention over the past several years, including some not currently included in the Green Guides. Comment is requested on the following types of specific claims:
- Carbon Offsets and Climate Change
- Compostable
- Degradable
- Ozone-Safe / Ozone-Friendly
- Recyclable
- Recycled Content
- Energy Use / Energy Efficiency
- Organic
- Sustainable
The FTC is also interested in comments on whether it should initiate a proceeding to consider rulemaking under the FTC Act related to deceptive or unfair environmental claims. The Green Guides, themselves, are not independently enforceable and serve only as administrative guidance and interpretations. Thus, in an enforcement action, the challenged claim must be shown to be unfair or deceptive under the FTC Act. A rulemaking on environmental claims may assist in creating a uniform set of standards, but may also increase potential liability risks for marketers making environmental claims.
FTC plans to publish a notice in the Federal Register in mid-January 2023 announcing the opening of a 60-day public comment period on the Green Guides review. If you have any questions concerning the Green Guides or the comment opportunity, please contact Brenda Gotanda or 484-430-2327.