Frankfurt Kurnit Klein & Selz

October 6th, 2010

FTC Announces Proposed Revisions to Green Guides

The Federal Trade Commission announced proposed revisions to their Guides for the Use of Environmental Marketing Claims (the “Green Guides”). The Green Guides (16 C.F.R. Part 260) provide guidance to help marketers avoid making misleading environmental claims. The FTC is accepting public comments on the proposed changes until December 10, 2010, after which it will decide which changes to make final. The proposed revisions are designed to strengthen the FTC’s guidance on claims that are already addressed in the current Guides as well as to provide guidance on new claims.

The FTC’s proposal includes the following revisions to claims currently addressed by the Guides:
General Environmental Benefit Claims

• Marketers should not make unqualified general environmental benefit claims because they are nearly impossible to substantiate.
• Disclosures that are used to qualify general environmental benefit claims should be clear and prominent and should limit the claim to a specific benefit.

Certifications and Seals of Approval

• Certifications and seals of approval are considered endorsements covered by the FTC’s Endorsement Guides (e.g., marketers should disclose material connections to the certifier).
• Unqualified certifications and seals are likely to convey general environmental benefit claims. Therefore, certifications and seals should be qualified clearly and prominently to limit the claim to particular attributes for which marketers have substantiation.
• Third-party certification does not eliminate a marketer’s obligation to have substantiation for all claims.

Degradable

• A marketer should qualify a “degradable” claim unless it can substantiate that the entire product or package will completely break down and return to nature within one year after customary disposal.
• Marketers should not make unqualified “degradable” claims for items destined for landfills, incinerators, or recycling facilities.

Compostable

• A marketer should qualify a “compostable” claim unless it can substantiate that all materials in the product or package will break down into, or otherwise become a part of, usable compost in approximately the same time as the materials with which it is composted.

Ozone-Safe/Ozone-Friendly

• The proposal contains minor updates to examples to reflect changes in regulations concerning ozone-depleting chemicals.

Recyclable

• Marketers can make an unqualified “recyclable” claim if a “substantial majority” of consumers/communities have access to recycling facilities.
• Marketers should qualify a “recyclable” claim (e.g., “package may not be recyclable in your area”) if a “significant percentage” of consumers/communities have access to recycling facilities.
• Marketers should qualify a “recyclable” claim (e.g., “product is recyclable only in the few communities that have recycling programs”) if less than a “significant percentage” of consumers/communities have access to recycling facilities.

Free

• Claims that an item is “free” of a substance may be deceptive if (1) the item has substances that pose the same (or a similar) environmental risk as the substance not present, or (2) the substance has never been associated with the product category.
• In certain circumstances, “free” claims may be appropriate even where an item has a de minimis amount of a substance.
• “Free” claims may convey additional environmental claims, including general benefit or comparative superiority claims.

Non-toxic

• Such claims likely convey that an item is non-toxic both for humans and for the environment generally.

The FTC’s proposal includes the following guidance for claims not currently addressed by the Guides:

Made with Renewable Materials

• Marketers should qualify claims with specific information about the “renewable” material (e.g., what it is, how it is sourced, why it is renewable, etc.).
• Marketers should qualify “renewable” materials claims if the item is not made entirely with renewable materials (excluding minor, incidental components).

Made with Renewable Energy

• Marketers should not make unqualified “renewable energy” claims if the power used to manufacture any part of the product was derived from fossil fuels.
• Marketers should specify the source of renewable energy (e.g., wind or solar), and should qualify the claims if less than all, or virtually all, of the significant manufacturing processes involved in making the product/package were powered with renewable energy or conventional energy offset by renewable energy certificates.
• Marketers that generate renewable energy, but sell renewable energy certificates for all of the renewable energy they generate, should not represent that they use renewable energy.

Carbon Offsets

• Marketers should have competent and reliable scientific evidence to support “carbon offset” claims (including appropriate accounting methods).
• Marketers should disclose if the emission reductions that are being offset will not occur within two years.
• Marketers should not advertise a carbon offset if the activity that forms the basis of the offset is already required by law.

Notably, the FTC’s proposed Guides do not address use of the terms “sustainable,” “natural,” or “organic.”

Read the FTC's full press release - "Federal Trade Commission Proposes Revised 'Green Guides'".

If you have any questions about the FTC’s announcement, contact Jeffrey A. Greenbaum at (212) 826 5525 or jgreenbaum@fkks.com, Terri J. Seligman at (212) 826 5580 or tseligman@fkks.com or any member of the Frankfurt Kurnit Advertising Group.

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