FTC Seeks Input on Potential Updates to Its Green Guides

At its Dec. 14, 2022, meeting, the Federal Trade Commission (FTC or Commission) voted to obtain public comment on potential revisions to its Guides for the Use of Environmental Marketing Claims (Green Guides or Guides). The official notice requesting comment is likely to be published in the Federal Register in mid-January 2023.

The Green Guides were first published in 1992 and updated most recently in 2012. The purpose of the Guides is to prevent deception of consumers from false or misleading environmental advertising and labeling claims. The Commission appears to be looking for evidence that environmental claims are supported by reliable substantiation plans, are science based and are achievable. The Commission appears to be particularly concerned about environmental claims that are overstated.

The FTC plans to ask a series of questions in the notice and is looking for evidence supportive of the commenter's position. The FTC is particularly interested in knowing whether:

• the Green Guides provide benefits to consumers
• any modifications to the Guides might impose additional costs on businesses (particularly small business)
• industry is generally complying with the Guides, and
• any particular areas are not currently covered by the Guides where unfair or deceptive environmental marketing claims are being made

The FTC would also like to know whether the Guides should extend to international laws, regulations and standards. The FTC also inquired whether it should initiate a formal rulemaking to establish more enforceable requirements.

Of particular interest to the Commission are claims related to climate change and whether the Guides should cover sustainability claims more broadly. Previously, the Commission did not believe that it had a basis for providing specific guidance on sustainability claims. In particular, the Commission is now seeking input on:

• carbon offset claims
• net zero claims, carbon neutral claims and low carbon claims

The FTC is also revisiting the current criteria for labeling products or making claims that products are:

• "compostable"
• "degradable"
• "ozone safe"
• "recyclable"
• "having recycled content"
• "energy efficient"
• "organic"

Greenwashing has been alleged in a number of areas, including on the climate change front and with products that allegedly protect consumers against viruses, such as COVID-19. The Commission is authorized to collect penalties and fines if it believes that specific advertising or labeling claims are deceptive or misleading to consumers. Settlements in the past few years have included penalties ranging from $1.26 million to $5.5 million.

Comments will be due 60 days after the notice is published in the Federal Register (presumably due in mid-March). Any comments should note that they pertain to the Green Guides Review (16 CFR part 260) in Matter No. P954501.

For more information, questions or need for assistance in providing a comment, contact the authors or another member of our Environmental Team.

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