New FTC Green Marketing Guidelines Are 100% Eco-Friendly (and Helpful!)

“Earlier this week the Federal Trade Commission (‘FTC’) adopted revised Guides for the Use of Environmental Marketing Claims. The updated ‘Green Guides’ provide the FTC’s current views on when environmental claims may be deceptive. This includes not only general claims that a product is environmentally friendly, but specific claims that a product is compostable, degradable, ozone friendly, recyclable, non-toxic, made of recycled content, made with renewable energy or materials, or that the purchase of the product will result in an offset of the product’s carbon footprint.” (Bryan Cave)

Eco-friendly, non-toxic, biodegradable, made from recycled materials… The green list goes on, but the advertising message is the same: the product or services you’re selling are good for the environment. And for your bottom line, too, provided you don’t run afoul of the Federal Trade Commission by making unfair or deceptive marketing claims.

For your reference, seven takeaways from the FTC’s latest green marketing guidelines:

1. General is out, specific is in:

“The Guides state that unqualified general environmental benefit claims such as ‘Eco-friendly’ or ‘Green’ are likely deceptive and should not be made. Instead, marketers should use clear and prominent qualifying language to limit environmental benefit claims to a specific benefit(s).” (Manatt, Phelps & Phillips)

2. The guidelines aren’t binding laws, but you’ll still want to follow them closely:

“The Green Guides are guidance, not agency rules or regulations. They consist of general principles, specific guidance on the use of particular environmental claims, and numerous examples. Although the Green Guides do not have the force of law, making environmental claims that are inconsistent with the Guides may result in an FTC investigation.” (Loeb & Loeb LLP)

3. Adherence to the guidelines might help in the event of consumer protection litigation:

“Although the Guides do not eliminate the threat of class action lawsuits under state laws, they may provide advertisers and others with arguments to defend against state law-based consumer protection litigation relating to allegations of deceptive and misleading marketing claims. Some courts and state statutes give FTC guidelines significant weight.” (Morgan Lewis)

4. It’s not only OK to get technical – it’s required:

“Technical matters, such as claims about carbon offsets or that a product is compostable, degradable, or recyclable, need to be substantiated with good science. Claims that a product is recyclable also need to take into account whether there is a market for recycling that particular product.” (Foley & Lardner)

5. Don’t see it in the guide? Use common sense:

“The Green Guides updates do not attempt to provide advice about what constitutes appropriate use of the terms ‘sustainable’ and ‘natural.’ The FTC says it lacks sufficient evidence on which to base general guidance on these terms, but in the release conference call the FTC noted that this does not mean marketers can make claims of ‘sustainable’ or ‘natural’ with impunity and could be subject to Section 5 enforcement action.” (Lane Powell)

6. Trade associations that offer green certification must follow specific rules:

“One of the most significant changes in the revised ‘Green Guides’ is a new section on the use of environmental certifications and seals of approval in advertising… Any association that is considering the creation of such a program and any association member considering the use of such a certification or seal of approval in its advertising or on its packaging should take a close look at what the FTC has to say in the revised ‘Green Guides.’” (Venable)

7. Stay tuned for future revisions:

“…the Green Guides … reiterate general principles that ‘when a marketer targets a particular segment of consumers, the Commission will examine how reasonable members of that group interpret the advertisement.’ This suggests that the FTC will continue to assess whether a marketing claim is misleading based on the eyes of a consumer or subset of consumers and the FTC may, in the future, narrow how it interprets an advertisement depending on the target audience of that advertisement.” (Morrison & Foerster)

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