In a long awaited move, the Federal Trade Commission (“FTC”) announced in December that it is seeking public comment on its review of the ‘Green Guides’ for the Use of Environmental Claims (16 C.F.R. part 260). The Green Guides are intended to help marketers avoid making false and misleading claims about environmental benefits and to offer specific guidance on the substantiation required to make certain green claims. The Green Guides were first issued in 1992 and last updated in 2012.
The FTC’s request acknowledges that over the last decade, there has been increased attention paid to environmental issues along with the proliferation of environmental marketing claims that are not covered by the current Green Guides. The FTC is interested in better understanding how the marketplace and consumer understanding of green claims has evolved and the efficacy of the Green Guides to date, as well as whether the Green Guides overlap and conflict with other laws, including state and local laws.
In addition to these general issues, the FTC has identified a number of specific green claims and asked for comment on whether the Green Guides should be revised to change current guidance or newly address claims that weren’t previously included:
- Carbon offsets and climate change claims, such as “net zero,” “carbon neutral,” “low carbon,” or “carbon negative”
- Waste disposal claims – e.g., recyclable, compostable, or biodegradable
- Waste content claims, such as recycled content
- Energy use and efficiency claims
- Organic claims
- Sustainable claims
Any changes to the Green Guides are likely to impact any company making environmental claims. This impact is potentially significant for companies making or considering making any claims that fall into the list above, as the FTC may well set new standards for what qualifications or evidence is required to make or support these types of claims. Initial comments are due to the FTC on February 21, 2023.
Vic Westgate and Megan Noonan will continue to monitor this process and provide updates as the FTC’s review moves forward throughout this year.
