It has been almost two years since the Federal Trade Commission (FTC) published for public comment its draft revised Green Guides (a.k.a. Guides for the Use of Environmental Marketing Claims). It is now anticipated that the FTC intends to release its final revised 
version next Monday, October 1, 2012. What are some of the issues that we are looking for in the FTC’s final version?
By way of background, the 2010 draft left some of its previous guidance unchanged, but updated guidance in these important areas:
- General benefit environmental claims (i.e. “Eco-friendly”) are strongly discouraged and viewed by the FTC as virtually impossible to substantiate.
- More stringent requirements and substantiation for the use of claims pertaining to biodegradable and compostable products.
- Guidance on the use of green certifications and seals placing the burden on the marketer to disclose material connections with the certifier and maintain the ability to substantiate the claim based on the certification or seal.
- All new guidance on claims involving the use of renewable materials, renewable energy, and carbon offsets.
It has been reported that the FTC received thousands of comments on its draft Green Guides. Here are three issues we are looking for in the final draft:
- Will the draft guidance on “recyclable” claims stand? The FTC’s draft guidance on recyclable claims possibly has the broadest impact on existing green marketing claims. The FTC’s 2010 draft would create three tiers of possible claims based upon the general availability of recycling programs to consumers. If a “substantial majority” of consumers or communities have access to relevant recycling facilities, a marketer can make an unqualified claim that the product is recyclable. If only a “significant percentage” of consumers or communities have access to relevant recycling facilities, qualifications such as “the product may not be recyclable in your area” should be used. If less than a “significant percentage” of consumers or communities have access to the relevant recycling programs, then the claim must be qualified with “the product is recyclable only in the few communities that have relevant recycling programs.” This proposal received significant public comment, many comments questioning the administrative burden to accurately review each community’s recycling program and to keep this information current.
- Revised guidance on “biodegrable” and “compostable” claims: The FTC received significant push-back through many public comments that its guidance on the use of these terms is confusing at best and unworkable at worst. For example, in its 2010 draft, the FTC’s analysis casts doubt on widely used tests for biodegradation, causing confusion among companies that sell biodegradable products and have substantiation to validate these claims.
- Guidance on the use of “all natural” claims: Since 2010, dozens of lawsuits have been filed in numerous states challenging marketers’ use of “all natural” claims. The FTC’s 2010 draft sidestepped the issue and provided no guidance to marketers. With the litigation pending, will the FTC continue to remain silent?
We will have to wait until next Monday to see if these issues are resolved and what new issues emerge.
