Proposed Revisions to
"Guides for the Use of Environmental Marketing Claims"

On Oct. 6, 2010, the Federal Trade Commission (FTC) published a notice soliciting public comment on proposed revisions to its "Guides for the Use of Environmental Marketing Claims" (commonly known as "Green Guides" or "Guides").

Companies may be affected by the FTC's proposed revisions if they advertise the "environmental attributes" of a product, package or service. Although the Guides are not enforceable, the FTC can take action under Section 5 of the FTC Act if it determines that members of industry have taken action inconsistent with the Guides.

The Green Guides provide guidance to industry ("marketers") in advertising or otherwise marketing the "general environmental benefits" of a product, package or service. Among other things, the Guides currently address claims that a product or package is "degradable," "compostable," "recyclable," "refillable," "ozone-friendly or ozone-safe," or "reduced" in weight, volume or toxicity. The FTC will consider and accept comments until Dec. 10, 2010, on the proposed changes, including the need to make additional changes, which include:

1. A caution to avoid claims of general environmental benefits.

General environmental benefit claims (e.g., a product or packaging is "environmentally friendly" or "eco-friendly") should be avoided and qualifications should be clear, prominent and limit the claim to a specific benefit.

2. A new section devoted to certifications and seals of approval.

Certifications and seals of approval are subject to the FTC's Endorsement Guides and should be qualified to avoid a general environmental benefit claim. A marketer cannot rely on third-party certifications and should be able to independently substantiate all claims subject to the third-party certification or seal of approval.

3. Additional guidance for claims that a product is "degradable," "compostable" or "free of" a particular substance.

A product or packaging should not be identified as "degradable" unless it can decompose completely within one year. Items destined for landfills, incinerators or recycling facilities should not be marketed as "degradable" because they will not decompose within one year. A product or packaging should not be identified as "compostable" unless it should break down in approximately the same time as the materials with which it is composted. Claims that a product or package is "free-of" a substance should not be made if the item contains the same or similar substances that pose the same risk as the substance that is not present. However, depending on context, a "free-of" claim may be appropriate even if the item contains a de minimis amount of a substance.

4. New guidance regarding the use of "renewable materials" and "renewable energy."

Renewable material claims should specifically describe the renewable material used and should qualify the claim if the item is not made entirely with renewable materials. Renewable energy claims should state if any part of the item is derived from fossil fuels and should be qualified with the type of renewable energy used for manufacturing. Renewable energy claims should indicate if a product or package is made with renewable energy or conventional energy offset by renewable energy. In addition, marketers that generate renewable energy but sell renewable energy certificates for all of the renewable energy they generate should not represent that they use renewable energy.

5. A new section regarding "carbon offset" claims.

Competent and reliable scientific evidence should be available to support a carbon offset claim. Marketers should indicate whether the offset will fund emissions reductions that will not occur within two years and should not advertise a carbon offset if it is based on activity that is already required by law.

If you would like to discuss the FTC's request for stakeholder input or any of the potential changes to the FTC's Green Guides, please contact Susan Charles or Kristina Tridico. You can also view the FTC Notice.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.