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“Green” Marketing and Advertising Guides Revised by the FTC

Companies that market and tout the environmental benefits of their products and services need to be aware that on October 11, 2012, the Federal Trade Commission (FTC) revised its Guides for Use of Environmental Marketing Claims, known simply as the “Green Guides” at 16 CFR Part 260. While the Green Guides, themselves, are not administrative rules or regulations, the guides are intended to provide guidance regarding the types of environmental claims the FTC may find false, misleading, unfair, or deceptive. Indeed, the FTC “can take action under the FTC Act if a marketer makes a claim inconsistent with the guides.”

Under the revised Green Guides, the FTC cautions advertisers on general environmental benefit claims, like “green” or “eco-friendly” due to the inability to substantiate such claims. Instead, marketers should qualify general claims with specific environmental benefits, and such qualifications should be clear, prominent, and specific.

The Green Guides address six new types of environmental claims that had not been addressed previously:

  • Carbon offsets;
  • The use of certifications or seals of approval (e.g., third-party endorsement);
  • Free-of claims;
  • Nontoxic claims;
  • Made with renewable energy; and
  • Made with renewable materials.

In addition to guidance on these types of claims, the FTC has substantially revised certain portions of the 1998 Green Guides. For example, the FTC advises that marketers should qualify “recyclable” claims when recycling facilities are not available to at least 60 percent of the consumers or communities where a product is sold. In such instances, the marketer could state “This product may not be recyclable in your area.”

Also notably absent, the final Guides do not include specific guidance for the terms: organic; natural; or sustainable.

As a result of the revised Guides, companies and marketers should consider taking a closer look at their “green” claims to determine whether such claims can withstand scrutiny in an enforcement action by the FTC or by a competitor challenging the advertisement.