The Updated FTC Green Guides: A Light in the Darkness?

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Many of you out there may be waiting with baited breath for the release of the new FTC Green Guides, slated for release in the coming months, to help cull the flood of spurious environmental claims that are flooding our lives. It’s the first update in 12 years, a period in which, one could argue, environmental concerns took seed in the consumer market, and as many people have likely noticed – the need for some kind of guidance is significantly past due. Even the Federal Trade Commission (FTC), on its reporter resources page, acknowledges that “because of the proliferation of green claims in the marketplace, the FTC commenced the review in November 2007, over a year earlier than it originally planned, as part of its regulatory review program.” A year earlier! 

While the changes being considered by the FTC do not appear to be in the public domain, it is really quite interesting to read through the actual text of the existing guidelines, the so-called Part 260, particularly the General Principles Section, which include:

• Distinction between benefits of product, package and service
• Overstatement of environmental attribute
• General environmental benefit claims:

Here’s a doozy from the general environmental benefit claims:

A brand name like "Eco-Safe" would be deceptive if, in the context of the product so named, it leads consumers to believe that the product has environmental benefits which cannot be substantiated by the manufacturer. The claim would not be deceptive if "Eco-Safe" were followed by clear and prominent qualifying language limiting the safety representation to a particular product attribute for which it could be substantiated, and provided that no other deceptive implications were created by the context.

It’s worth a click to this website even if just to review examples like this one, which are pretty basic, but remind us that there is at least a foundation from which marketing claims can be made.

So how impactful will the new guides be? Christopher Cole, a quotable favorite on the subject, said the guides could debunk more than 300 environmental seals of approval that currently appear on packaging and products. One of the focus areas of the guides will be Renewable Energy Credits (RECs) and carbon neutral claims; another, packaging claims pertaining to biodegradable and recyclable; and most interesting of all, use of ubiquitous terms like “sustainability.”

What makes this even more interesting is the fact that the guides are starting to have some teeth. After all intent of the guides (according to the FTC) is merely to “help marketers avoid making environmental claims that are unfair or deceptive under Section 5 of the FTC Act.” However “because the Green Guides are administrative interpretations of the law, they do not have the force and effect of law and they are not independently enforceable.” But marketers can still get sued if they advertise things that aren’t “true.”

So the guides are only as meaningful as enforcement of them (much like inspection laws), and, encouragingly, during the first two years of the Obama administration, the FTC has already brought seven enforcement actions, compared to zero during all eight Bush years. The suits (the link is hard to navigate; click on “environment,” then “enforcement”) have dealt with unsubstantiated claims of biodegradable paper products and bamboo-derived fiber.

As a final aside, while it’s critical to stem the tide of false positive claims, what is conspicuously absent from this conversation is the opposite: the introduction of negative labels on “bad” products – those that are less safe, made of toxic materials, having egregious packaging, using copious energy in the production, etc. As things stand, I can’t even buy sunscreen that I can be confident is “safe” without a massive research project or faith in a handy smart phone app. But more on this next in future posts.

For now, the updated FTC Green Guides are expected to be released at the end of the summer. So if you’re a product manufacturer or marketer or a litigator of false claims -- sit tight. You’ll have your work cut out you soon enough.