Details of FTC’s Proposed Revisions to "Green Guides"

Comments are due by December 10, 2010.

(The FTC issued the Green Guides (16 CFR Part 260) in 1992 to help marketers avoid making environmental claims that are unfair or deceptive. They outline general principles and describe the basic elements necessary to substantiate claims such as "environmentally friendly," "recyclable," or "ozone safe," etc.

While the Guides do not have the force and effect of law and are not independently enforceable, FTC can take action if a business makes claims inconsistent with the Guides by proving that the act or practice at issue is unfair or deceptive. See ITT’s Online Archives or news, 09122299 #4 and 09102699 #4, for BP summaries of recent FTC settlements with companies over unsubstantiated claims.)

FTC Requested Comments in 2007, Held 3 Workshops in 2007-08

Due to an increasing number of environmental claims that are new or were not common when the Guides were last reviewed, beginning in 2007, FTC sought public comments on the continuing effectiveness of the Guides. FTC also held three public workshops to explore emerging environmental marketing claims. Specifically, the workshops addressed carbon offsets and renewable energy certificates; green packaging claims; and green building and textiles.

(See ITT's Online Archives or 12/06/07 and news, 07120625, for BP summaries of FTC’s 2007 request for comments and announcement of the workshop on carbon offsets and renewable energy certificates.

See ITT's Online Archives or 03/18/08 and 06/13/08 news, 08031830 and 08061345, for BP summaries of the FTC workshops on green packing claims and green building and textiles, respectively.)

Proposed New/Revised Guidance on Certain Claims, Certifications, Etc.

After reviewing the public comments, the transcripts of three public workshops that explored emerging issues, and the results of its consumer perception research, FTC proposes several modifications and additions to the Guides, including the following.

New guidance on renewable materials/energy. The proposed revised Guides would include new sections for claims not addressed by the current Guides, such as claims about the use of “renewable materials” and “renewable energy” The proposed new sections advise marketers to provide context for these claims, in the form of specific information about the materials and energy used.

New guidance on carbon offsets. The proposed revised Guides would provide advice about “carbon offset” claims: marketers should disclose if the offset purchase funds emission reductions that will not occur within 2 years, should make sure that they do not double count offsets, and should not advertise an offset if the activity that produces the offset is already required by law.

New guidance on certifications/seals. FTC also proposes to include a new section devoted to certifications and seals of approval, which currently are addressed in a single example. The new section would more directly caution marketers not to use unqualified certifications or seals, i.e., certifications or seals that do not state the basis for the certification, and advises that qualifications should be clear and prominent and should convey that the certification or seal of approval refers only to specific and limited benefits.

Moreover, this new section would emphasize that certifications and seals of approval constitute endorsements covered by the FTC's Endorsement Guides and includes examples explaining how those Guides apply to environmental claims.

Caution against general claims. FTC proposes strengthening its guidance regarding general environmental benefit claims by cautioning marketers not to make unqualified general claims, and by providing more prominent guidance on how to adequately qualify general environmental claims.

Clarification on degradable claims, etc. The proposed revised Guides also suggest clarification for claims that a product is degradable, compostable, or “free of” a particular substance, and highlight guidance for recyclable claims. If a marketer claims, in certain cases, that a product is “degradable,” it should decompose in a “reasonably short period of time” -- no more than one year.

Moreover, if a solid product is destined for a landfill, an incinerator, or a recycling facility, the marketer should not make unqualified degradable claims because the product will not degrade within a year.

FTC Poses Specific Questions for Revising Green Guides

FTC invites comment on all issues raised in its notice, including all aspects of the proposed revised Green Guides, and also requests responses to 18 specific multi-part questions, including the following (see FTC notice for complete questions):

1. Do consumers interpret general environmental claims, when qualified by a particular attribute, to mean that the particular attribute provides the product with a net environmental benefit?
2. Would it be helpful to include an example in the Guides illustrating a qualified general environmental claim that is nevertheless deceptive?
3. Would it be deceptive for a product to be advertised with an unqualified general environmental benefit claim if the product had a negligible environmental impact?
4. If a marketer makes an unqualified degradable claim for a liquid substance (or dissolvable solid), how long do consumers believe the substance will take to completely degrade?
5. Would this guidance lead to deceptive claims in circumstances where consumers would expect a material to degrade in less than one year?
6. Should FTC quantify the “substantial majority” threshold in the recyclable section of the Guides?
7. Should FTC quantify the “significant percentage” threshold in the recyclable section of the Guides?
8. What changes, if any, should FTC make to its guidance on pre-consumer recycled content claims?
9. Do consumers understand the difference between pre-consumer and post-consumer recycled content?
10. Should FTC continue to advise marketers that recycled content claims may be based on the annual weighted average of recycled content in an item?
11. If a product is advertised as “made with recycled materials,” either in whole or in part, should FTC advise marketers to qualify that claim to indicate that the product is not recyclable if it is not?
12. Are consumers aware that manufacturers are no longer permitted to use CFCs in their products?
13. What guidance, if any, should FTC provide concerning free-of claims based on substances which have never been associated with a product category?
14. What guidance, if any, should FTC provide concerning organic claims about non-agricultural products?
15. How should marketers qualify “made with renewable materials” claims, if at all, to avoid deception?
16. How, and under what circumstances, should marketers qualify “made with renewable energy” claims to avoid deception?
17. How do consumers understand “carbon offset” and “carbon neutral” claims?
18. How should marketers qualify carbon offset claims, if at all, to avoid deception about the timing of emission reductions?

(See ITT's Online Archives or 10/08/10 news, 10100820, for BP summary of FTC’s press release on the proposed revisions.)

FTC contact -- Laura Koss (202) 326-2890

(FR Pub 10/15/10)